SZLYQ v Minister for Immigration
[2008] FMCA 454
•1 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 454 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution for real or imputed political opinion – credibility – whether the Tribunal failed to comply with Migration Act 1958 (Cth) s.424A(1). |
| Migration Act 1958 (Cth) ss.424A, 474 |
| SZEPZ v Minister for immigration & Multicultural Affairs [2006] FCAFC 107 followed. Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZLYQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 282 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 April 2008 |
| Date of last submission: | 1 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondent: | Mr Cleary |
| 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 $4,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 282 of 2008
| SZLYQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of China, asks the Court to set aside a decision of the Refugee Review Tribunal made on 3rd January 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
The Applicant asks the Court to make these orders:
a)A declaration that the decision was invalid and contrary to law.
b)An order that the decisions and each of them referred to above be quashed or set aside.
c)An order that the matter be remitted to a differently constituted Refugee Review Tribunal (“the Tribunal”) to be determined in accordance with the law.
d)An order that the respondent pay the costs of this application.
e)Such further orders as this Honourable Court sees fit.
At the outset, it should be said that if the Court is satisfied that an order in the nature of mandamus should issue remitting the application to the Tribunal for determination according to law, it is not appropriate for the Court to order that the Tribunal should be differently constituted. The constitution of the Tribunal is a matter for the Principal Member and it is doubtful that the Court has the power to make the order (see SZEPZ v Minister for Immigration & Multicultural Affairs[1]).
[1] [2006] FCAFC 107
The Applicant also refers, in Order 2, to “the decisions and each of them”. There is only one Tribunal decision under review.
Background
The Applicant arrived in Australia on 5th May 2007. She travelled on a false Singaporean passport. On 18th June 2007 the Applicant applied for a Protection (Class XA) visa. In a statutory declaration[2] submitted in support of her application, the Applicant claimed to have been targeted by the PSB as a leader of an anti-government. She claimed to have been involved in protests against corrupt officials who had sold farmland used by farmers for growing crops.
[2] Court book at pages 31 to 35
A delegate of the Minister refused the application for a visa on 10th August 2007, citing a “lack of documentary evidence”.[3]
[3] Court book 48 and 49
The Applicant then applied to the Refugee Review Tribunal for a review of the delegate’s decision.
Application for Review by the Refugee Review Tribunal
The Tribunal received an application for review from the Applicant on 6th September 2007, submitted by a migration agent. No other documents were provided at that stage.
The Tribunal wrote to the Applicant on 27th September 2007, inviting her to attend a hearing scheduled to take place on 18th October 2007. The Applicant submitted two letters to the Tribunal on 18th October 2007, both written in Chinese. On 30th October the Applicant’s migration agent supplied an English translation of the two documents.
The Applicant attended the hearing on 18th October 2007 and gave evidence with the assistance of an interpreter in the Mandarin language.
The Tribunal signed its decision on 11th December 2007 and handed the decision down on 3rd January 2008.[4]
[4] A copy of the Tribunal Decision Record appears at pages 78 to 94 of the Court Book
The Refugee Review Tribunal Decision
The Tribunal set out the Applicant’s claims and evidence in some detail, from the protection visa application and the evidence given at the Tribunal hearing. The evidence at the hearing is set out under these headings:
· Passport
· Accuracy of protection visa application
· Employment
· Family and residence in China
· Farms
· Claims for protection
· Confiscation of land
· Letters
· Approach by police
· Hiding
· Arrests
· Future conduct
· Departure from China.[5]
[5] Court Book 83-89
The Tribunal also considered independent evidence under these headings:
a) Acquisition of farmland without consultation or compensation;
b) Treatment of protesters; and
c) Compulsory acquisition of the visa applicant’s land in October 2006.[6]
[6] Court Book 89-91
The Tribunal’s Findings and Reasons
The Tribunal set out its Findings and Reasons[7] under these headings:
[7] Court Book 91-94
a) Nationality
b) Claims
c) Reasons for credibility finding.
The Tribunal noted the Applicant’s claim to be a citizen of China who used a fraudulent Singaporean passport to enter Australia. The Singapore passport was confirmed to be fraudulent. The Tribunal was satisfied that the Applicant is a citizen of China as she has claimed.
The Tribunal was not satisfied that the Applicant was a witness of truth and set out its reasons for that finding. The reasons were, in summary:
a)The Applicant gave inconsistent evidence on a number of points :
The Tribunal finds that the Applicant’s evidence changed about why nothing was reported because she was not talking from actual experience.
b)The Applicant’s lack of knowledge about a friend who helped her was implausible:
The Tribunal finds that the Applicant was unable to provide background details to substantiate her claims because she was not talking from actual experience.
c)The Applicant’s lack of knowledge about the circumstances of her father’s detention was implausible:
In view of the Applicant’s evidence that her father has been detained for several months as a result of her activities, and that she regularly speaks to her mother, the Tribunal does not find it plausible that the Applicant would not have found out more information from her mother about her father’s detention.[8]
[8] Court Book 92-93
The Tribunal found that the Applicant was not a witness of truth and therefore did not accept that the Applicant had a farm that was expropriated, that she engaged in protest activities, that she came to the adverse attention of the authorities, that she was wanted by the police, or that the Applicant’s father or anyone else was harmed as a result of the protest activities.
The Tribunal was not satisfied that that the Applicant had a well founded fear of persecution in China because of her:
a)political opinion;
b)perceived political opinion;
c)membership of a particular social group; or
d)any other Convention reason.
The Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 8th February 2008. At the First Court Date of 3rd March, the Court made directions for hearing. The Applicant was directed to file and serve a short written outline of submissions 10 days before the hearing. She does not appear to have done so.
The Applicant relies on the following grounds for relief:
i)There was an error of law in the Tribunal’s decision constituting a jurisdictional error: and
ii)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
The particulars of those claims are:
a) The Tribunal assessed my credibility incorrectly.
b) The Tribunal made its finding simply based on its unwarranted assumption; and the tribunal failed to take any genuine attempt to consider my claims properly and fairly.
c) The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
The Applicant concluded by saying:
In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.
Submissions
The Applicant’s Submissions
The Applicant attended Court and made oral submissions to the Court. She said that she did not believe the charge that the Tribunal raised against her saying that her evidence was inconsistent. She admitted that possibly she may have said that she had two areas of farmland, but gave that land to her brothers. She said that things had changed since her marriage.
The Applicant believed that the Tribunal lacked the essential knowledge regarding her case and would not give her a fair judgment. She said there are many situations where the news is not reported in China, the media is strongly restricted by the Chinese government. She said that the Refugee Review Tribunal assumed that communications in China were free as they are in Australia, but obviously the Tribunal is wrong because its assumption is wrong. She said that her mother would not be able to tell her details about her father over the phone because she strongly believed that her telephone was monitored.
The Applicant claimed that the Tribunal had seriously violated the provisions of s.424A of the Migration Act because the Tribunal had to do three things:
a)tell her all the information in the Tribunal's decision;
b)inform her that the information was essential to the decision; and
c)give her a chance to argue against it.
It was put to her by the Court that the Tribunal did not believe her evidence and the Applicant said that she hoped the Court would give her a fair judgment because she could not go back to China, she could not stay there.
The First Respondent’s Submissions
Mr Cleary of counsel had prepared a written outline of submissions and spoke to those. He submitted to the Court that the Tribunal decision was essentially one that turned on credibility findings made by the Tribunal from the Applicant's evidence. He pointed out that the Tribunal had set out its reasons for its credibility findings at pages 92 and 93 of the Court Book.
The Applicant’s Submissions in Reply
The Applicant in reply told the Court that news reports in China were restricted and that only the good news was allowed to get out. She reiterated that her telephone had been monitored, that her father is now quite old and when he was detained her mother would not give her any details, amongst other reasons, because her mother thought that she would worry about her father's health. She denied factual aspects about the amount of land that she had or was entitled to and claimed that she told the Tribunal that her friend who had tipped her off about her address was the head of a government office and was in the position to advice her.
The Applicant also claimed that the Tribunal had failed to comply with the provisions of s.424AA of the Migration Act. In my view, s.424AA of the Migration Act does not apply to this case.
Conclusions
Dealing with the Tribunal decision, I am satisfied that this is a decision that essentially turns on credibility findings. The Applicant has complained that the Tribunal committed an error of law, and the error of law to which she referred to was breach of s.424A(1) of the Migration Act. I am not satisfied that the Applicant has established a breach of s.424A(1).
In its decision the Tribunal referred to Independent Country Evidence, but the basis of the decision itself in the Tribunal's findings and reasons related to the Tribunal's assessment of the credibility of the Applicant's evidence to the Tribunal. Findings of credit are factual findings by the Tribunal and so long as there is evidence upon which those findings can be made, such findings are not open to judicial review. I have been referred to the decision of McHugh J in Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[9] at [67].
[9] (2000) 168 ALR 407
I am satisfied that the Tribunal's credibility findings, being findings of fact, were open to the Tribunal on the evidence before it. The credit findings were made on the basis of the Applicant's oral evidence to the Tribunal.
The Applicant's second ground is that the Tribunal denied her natural justice. She has not provided any particulars as to a claim of denial of natural justice and of course the natural justice hearing rule is circumscribed by the provisions of s.422B of the Migration Act. I am not of a view that there has been shown to be any denial of natural justice. There is no suggestion of bias on the part of the Tribunal, nor is it a fact that the Applicant was denied the opportunity of a fair hearing. The Tribunal invited her to attend a hearing and when she attended provided her with the assistance of an interpreter. There were no changes in issues between the delegate's decision and the matters that the Tribunal considered. I am satisfied that there has been no denial of natural justice.
As to the Applicant's claim that the Tribunal did not consider her claims, in my view, particular 2, which relates to the Applicant's challenge to the Tribunal findings, is more an attempt at merits review. The Applicant is of a view that the Tribunal was just not aware of the situation in China, but it is up to an applicant to make out his or her case. It is not up to the Tribunal to make its own independent investigations. If the Tribunal has made a factual error, that is not of itself a jurisdictional error, provided that there was evidence upon it was open to the Tribunal to make such a finding.
I am certainly not of a view that there has been any breach of s.424A of the Migration Act as the Applicant alleges.
Independent Country Information and the Applicant's evidence to the Tribunal are both excluded from the operation of s.424A(1) by the operation of s.424A(3). There is no other information that the Tribunal used. As I said, the Applicant mentioned s.424A of the Migration Act, but I cannot see that it is applicable in this case.
I am not of a view that the application or the decision demonstrates any other arguable case of jurisdictional error. I am mindful of the fact that the Applicant is not legally represented and so I have scrutinised the decision carefully in order to make it clear that there is no jurisdictional error.
I do note that the Applicant in her application said that she had never ever agreed that her application had been assessed by the Tribunal fairly and carefully. If that is an allegation of bias and there has been no particularisation of that claim. In my view, there is no evidence which would indicate bias, either actual bias or apprehended bias.
I am satisfied that no jurisdictional error is shown. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to remedies by way of declaration or orders in the nature of certiorari or mandamus. It follows that the application must be dismissed.
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 costs. The amount sought $4,300.00 is an appropriate figure and within the scale set by the Federal Magistrates Court Rules. I propose to order that the Applicant is to pay the First Respondent's costs fixed in the sum of $4,300.00.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 9 April 2008
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