SZLYH v Minister for Immigration
[2008] FMCA 660
•6 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 660 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of People’s Republic of China claiming fear of persecution for reason of religion. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Minister for Immigration and Multicultural and Indigenous Affairs; Ex parteDurairjasingham (2000) HCA 1 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 |
| Applicant: | SZLYH |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 257 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 May 2008 |
| Date of Last Submission: | 6 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2008 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Kantaria |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,800.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 257 of 2008
| SZLYH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of the People's Republic of China. She asks the Court to make a declaration that the decision of the Refugee Review Tribunal refusing her a protection visa is invalid and contrary to law. She also asks for orders that the Tribunal decision should be quashed or set aside and that the application should be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with law.
I would make the point at this stage that in order for the Court to be satisfied it should make those orders, the Court must be satisfied that the Tribunal decision is affected by jurisdictional error.
If the Court does issue an order in the nature of mandamus remitting the application to the Tribunal for determination, it is in my view well established that the Court should not make an order relating to the constitution of the Refugee Review Tribunal. There is considerable doubt that the Federal Magistrates Court has that power (see SZEPZ v Minister for Immigration & Multicultural Affairs[1].)
[1] [2006] FCAFC 107
In any event, before getting to that stage the Court must be satisfied that the Tribunal decision is affected by jurisdictional error.
Background
The Applicant arrived in Australia on 17th April 2007 and applied for a Protection (Class XA) visa on 31st May 2007. A delegate of the Minister refused her application for a visa on 17th August, and on 14th September 2007, the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.
Application to the Refugee Review Tribunal
The Tribunal invited the Applicant to appear at a hearing of the Tribunal on 24th October 2007. The Applicant attended that hearing and gave evidence with the assistance of an interpreter in the Mandarin language.
The Applicant applied for protection on the basis of political opinion. She claimed to have operated a shop selling foodstuffs and had employed as a shop assistant a woman who was a Roman Catholic. That woman had become an activist of the Roman Catholic Underground Church and was arrested and had been sent to a labour camp.
Once the young woman had been released and worked in the Applicant's shop, the police started harassing the Applicant and visited the shop regularly. The Applicant complained about this treatment and eventually she claims that she herself was arrested and detained on
1st February 2007 and was not released until 17th February 2007. She claims that in order to secure her release her husband had to pay a security bond of $20,000 Renminbi.
The Applicant claimed that after her release she sent petitions to government agencies protesting about the activities of the public security bureau, and eventually left China and came to Australia.
The Tribunal wrote to the Applicant after the hearing on 23rd November 2007. That letter, a copy of which appears at pages 80 to 83 of the Court Book was written in order to comply with the provisions of s.424A of the Migration Act and brought to the Applicant's attention a number of items of information and sought her comments on them.
The Applicant replied through her migration agent on 10th December 2007 by means of a statutory declaration. A copy of that statutory declaration can be found at pages 85 to 87 of the Court Book.
The Tribunal handed down its decision on 8th January 2008. A copy of the Tribunal decision record appears at pages 97 through to 122 of the Court Book. The Tribunal affirmed the delegate's decision not to grant the Applicant a Protection (Class XA) visa.
In the decision record the Tribunal referred to the Applicant's claims and evidence, including her application for a protection visa, her statutory declaration made on 30th May 2007, her evidence at the Tribunal hearing on 24th October 2007, the Tribunal section 424A letter of 23rd November 2007, and the Applicant's statutory declaration in reply to the s.424A letter.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 114 through to 122 of the Court Book. The Tribunal noted the Applicant's claim that she was a refugee on the basis of her political opinions and found that she was a citizen of China. However, the Tribunal referred to a number of inconsistencies in the Applicant's evidence and set out in some detail inconsistencies and omissions in the Applicant's claims.
The Tribunal noted the Applicant's claims that she had been attending the Roman Catholic Church since she arrived in Australia and considered a letter from Father Paul McGee of the Columban Mission Institute in support of the Applicant's claims.
The Tribunal found that the Applicant did not have a well-founded fear of persecution for reason of political opinion or for reasons of her religion. The Tribunal considered the Applicant's claim of involvement with the Catholic Church since arriving in Australia and disregarded that evidence under provisions of sub-section 91R(3) of the Migration Act.
On the basis of its adverse findings about the Applicant's credibility, the Tribunal was not satisfied that the Applicant was persecuted for reasons of either her political opinion or her religion. It was not satisfied that she would face serious harm for either of those reasons if she was to return to the People's Republic of China.
Accordingly, the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee's convention, and affirmed the decision not to grant her a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings on 5th February 2008 and in her application sets out in a considerable amount of detail particulars of the ground of the application upon which she relies.
The Applicant claims two grounds:
a)There was an error of law in the Tribunal's decision constituting a jurisdictional error.
b)There was procedural error in the Tribunal's decision constituting an absence of natural justice.
The particulars of those claims are extensive, and are as much in the nature of an outline of submissions as they are particulars of a ground of jurisdictional error.
Grounds of Review
Dealing with the claims in order, the Applicant's first particular contains a denial of the Tribunal's finding that there were a number of inconsistencies in her evidence. The Applicant reiterated her factual claims as set out in her oral evidence, and submitted that for two reasons the Tribunal's decision contained a reasonable apprehension of bias. Those reasons are:
i)Paying excessive attention to wording is sufficient evidence that the Tribunal failed to act according to substantial justice and the merits of the case, referring to s.420 of the Migration Act.
ii)Failing to consider the Applicant's evidence properly and fairly was also evidence that the Tribunal failed to act according to substantial justice and the merits of the case. See again s.420 of the Act.
The Applicant's second ground is that the Tribunal made its findings without giving any reasons, and some of the Tribunal's finding was based on unwarranted assumptions.
The Applicant's third ground challenges the Tribunal's finding that she omitted significant detail about her claimed detention and persecution in her application for a protection visa. The Applicant restated her evidence and claimed that the Tribunal decision includes a reasonable apprehension for bias.
The Applicant's fourth ground claims that the Tribunal failed to consider her further evidence submitted to it in response to the s.424A letter and sets out in seven paragraphs why the Applicant claims that her evidence has been ignored.
The Applicant's fifth ground complained that the Tribunal had failed to consider the letter from Father McGee independently and fairly, and claimed that the Tribunal gave no reason as to why it had made a finding that she would not continue to attend Church or continue to practice Christianity or Catholicism.
The Applicant claimed in her sixth ground that the Tribunal failed to assess her credibility correctly, and in her seventh ground claimed that the Tribunal failed to consider her claims fairly and properly.
Submissions
The Applicant did not file any written outline of submissions but made oral submissions to the Court. In respect of her claims of bias, which appear in the first, third and indeed seventh grounds, the Applicant said that she believed that the Refugee Review Tribunal was an unfair decision. She said that during the hearing she did provide detail about what had happened and claimed that the Tribunal had made a conclusion that she had provided inconsistent information, but that conclusion was totally wrong.
The Applicant claims that the fact that the Tribunal's decision is wrong is of itself evidence of bias. She claimed again that she was frightened to go home to China because of the persecution that she had suffered, and reiterated her claim that her family members had been harassed. She reiterated that the Tribunal did not have regard to the comments that she made in her statutory declaration in reply to the Tribunal's
s.424A letter. In respect of her evidence about religious belief, she told the Court that she had never said to the Tribunal she had been persecuted in China because of her religion.
Considerations
Ground 1
In dealing with these grounds in order, I turn first to the Applicant's first ground. The first ground, to my mind, contains a challenge to the Tribunal's factual findings. The Tribunal decision was based largely on its rejection of the Applicant's credibility due to its findings about inconsistencies in her evidence and omissions from her evidence.
The claim of bias is a serious claim and must be strictly alleged and strictly proved. It is certainly not the case that a factual error, if such there be, is evidence of bias any more than a decision not in the Applicant's favour provides of itself any evidence of bias.
The Court's require parties who allege bias to provide evidence of that bias and prove it. I refer to SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[2]. There is no evidence of bias. The Tribunal has set out why it found the Applicant's evidence to be inconsistent and in my view it was open to the Tribunal to arrive at that finding.
[2] (2002) 194 ALR 749 at [43] – [48].
The Applicant's first ground must fail.
Ground 2
The Applicant claims in her second ground that the Tribunal made its findings without giving any reasons, and some of its findings were based on unwarranted assumptions. The Tribunal decision record shows that the Tribunal gave significant reasons in detail for the findings that it made. Those reasons are set out at pages 115 through to 121 of the Court Book.
The Tribunal wrote to the Applicant in a lengthy letter under s.424A of the Court Book and brought inconsistencies and omissions to her attention, and provided her with the opportunity to comment upon them, which she did. I am of the view that the second ground has not been made out, in that first the Tribunal has given the reasons for its decision and second, there was no evidence of any unwarranted assumption.
Ground 3
The Applicant's third claim, which again refers to bias, contains a challenge to the Tribunal's finding that the Applicant admitted significant detail about her claimed detention and persecution in her application for a protection visa.
The Applicant restates her evidence. In my view the evidence was open to the Tribunal to make the finding about the omissions and it was open to the Tribunal to make findings about the Applicant's credibility, which were adverse to her.
It is well established, especially in decisions such as Minister for Immigration and Multicultural and Indigenous Affairs; Ex parteDurairjasingham[3], that a credibility finding is a matter for the Tribunal. And provided there is evidence upon which a finding can be made, Courts will not interfere on judicial review. Again, there is no evidence of bias. The Applicant's third ground does not succeed.
[3] (2000) HCA 1
Ground 4
The Applicant's fourth ground claims that the Tribunal failed to consider further evidence submitted in response to the Tribunal's
s.424A letter. In my view it is clear from the Tribunal's decision record, that it did consider the Applicant's response. Page 113 of the Court Book, the Tribunal refers to the Applicant's statutory declaration and at pages 115, 116, 117 and 118 of the Court Book the Tribunal refers specifically to matters raised by the Applicant in her statutory declaration.
I am of a view that the Applicant's fourth ground has not been made out.
Ground 5
The Applicant's fifth ground claims that the Tribunal had failed to consider Father McGee's letter independently and fairly. It would certainly appear, in page 119 of the Court Book, that the Tribunal did consider the letter. The Tribunal said:
“The Tribunal has serious concerns about the letter dated
21 October 2007the applicant provided at the Tribunal hearing from Father Paul McGee of the Columban Mission Institute. He stated that ‘due to persistent and vicious persecution and harassment of Catholic people by the government and its agencies in China' the applicant is seeking a protection visa. Yet the applicant gave evidence at the Tribunal hearing that the only basis on which she is claiming refugee status is because of her political opinion and is not seeking a protection basis because of her religion.”[4]
[4] See Court Book at page 119
The Applicant in the hearing before me reiterated her claim, which she had not claimed at the Tribunal hearing that she sought protection on the basis of religion.
The Tribunal also went on to consider the Applicant's claim to have become a Catholic in Australia and referred to her evidence about her practice of Catholicism in this country. The Tribunal went on to find, however, that the Applicant's evidence was not credible:
“…because she has been prepared to change her evidence, change her claims and provide a letter to the Tribunal which was not accurate.”[5]
[5] See Court Book at page 119
The Tribunal did go on to consider the Applicant's involvement with the Catholic religion in Australia, but for the reasons that it gave, disregarded that conduct under the provisions of sub-section 91R(3) of the Migration Act. In my view, the Applicant's fifth ground fails.
Ground 6
Whilst the Applicant claims in her sixth ground that the Tribunal failed to assess her credibility correctly, it must be said that credibility is a factual finding and factual findings, as was set out by McHugh J in the High Court in Durairajasingham, matters of fact.
The Tribunal gave reasons for making adverse findings about the Applicant's credibility, setting out in detail inconsistencies and omissions. In my view the matters upon which the Tribunal relied were sufficient to allow the Tribunal to make the finding that it did about the Applicant's credibility.
Accordingly, the Applicant's sixth ground failed.
Ground 7
The Applicant's seventh ground is that the Tribunal failed to consider her claims fairly and properly. If that is a claim of bias, there is no evidence of it. If it is a claim that the Tribunal did not consider an integer of the Applicant's claim or a significant part of the evidence, the Applicant has not pointed out what failure the Tribunal has committed in that regard.
Whilst the Applicant complained that the Tribunal had not considered the statutory declaration in answer to the Tribunal s.424A letter, it is clear that the Tribunal consider that in a considerable amount of detail.
The Applicant's seventh ground fails.
Conclusion
I am aware the Applicant is not legally represented. I have considered the Tribunal decision myself independently of either the Applicant's claims or the Respondent's submissions.
I note that in the delegate's decision an adverse inference was drawn as to the date when the Applicant arrived in Australia and the date when she applied for a protection visa:
“Further, I note that the applicant arrived in Australia on 17 April 2007 and she did not apply for a Protection visa until 31 May 2007. I do not accept that this behaviour reflects that of a person who holds a deep and genuine fear of persecution on return to her country of origin.”[6]
[6] See Court Book at page 45
The Tribunal picked up on that point at the hearing in the outline of the evidence:
“The Tribunal asked the applicant why she waited so long after arriving in Australia on 17 April 2007 to apply for a protection visa.”[7]
[7] See Court Book at page 104
The Tribunal then set out why the Applicant said that she took the time that she did to apply for the visa. The Tribunal referred to this in the Tribunal's findings and reasons:
“She then waited a further six weeks approximately before she lodged her application for a protection visa. The applicant's inconsistent and unconvincing explanation for this delay adds weight to the Tribunal's decision that the applicant is not a credible witness and her claims are not credible.”[8]
[8] See Court Book at page 118
The question of such a delay, if the information was taken from the application for a protection visa rather than from evidence given at the Tribunal hearing, it has recently been considered by the Full Court of the Federal Court of Australia in SZGIY v Minister for Immigration and Citizenship[9].
[9] [2008] FCAFC 68
The Full Court has made it clear that an inference drawn from that information is not classified as information and there is no breach of
s.424A of the Migration Act.
In short, I am not able to identify any jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision and as such the Applicant's application must be dismissed with costs.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in her claim and this is an appropriate matter for a costs order. The amount of $2,800.00 is an appropriate figure and one envisaged by the Federal Magistrate Court Rules.
The Applicant says she has no money to pay the costs, and that may well be so. That is not a reason for not making a costs order, but I will allow time to pay.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 21 May 2008
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