SZMBE v Minister for Immigration

[2008] FMCA 632

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMBE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 632

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in China – applicants giving inconsistent evidence at Tribunal hearing – Tribunal orally disclosing its concerns at the hearing and inviting a response – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 424AA, 425

SZBEL v Minister for Immigration and Citizenship (2006) 231 ALR 592
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZLXR v Minister for Immigration & Anor [2008] FMCA 367

First Applicant: SZMBE

Second Applicant: SZMBF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG644 of 2008

Judgment of: Driver FM

Hearing date: 15 May 2008

Delivered at: Sydney

Delivered on: 15 May 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms S Sirtes

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. 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

SYG644 of 2008

SZMBE

First Applicant

SZMBF

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

(As Corrected)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 21 February 2008.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants protection visas.  There are two applicants, a husband and a wife.  The relevant claims were made by the first applicant, the applicant husband.  Background facts relating to the applicants' arrival in Australia, the protection visa claims and the Tribunal decision on them are conveniently set out in the Minister's outline of submissions filed on 9 May 2008.  I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 1 through to 7(l) of those written submissions:

   On 4 June 2007 the first applicant, a (now) 44 year old citizen of China arrived in Australia (court book (CB) 11). 

   On 18 July 2007 he lodged an application for refugee status with Department of Immigration and Citizenship ("Department") pursuant to the Migration Act 1958 (Cth) (“the Migration Act”) (CB 1 to 28), together with a separate statutory declaration outlining his claims (CB 29 to 31).

   On 9 October 2007 a delegate of the first respondent refused the grant of a protection visa (CB 32 to 44).  On 8 November 2007 the applicant applied to the Tribunal and appointed an authorised recipient (CB 45 to 49).

   On 23 November 2007 the Tribunal invited the applicant to attend a hearing of the Tribunal and informed the applicant by that letter that it was not able to make a favourable decision based solely on the information before it (CB 51 to 52).

   On 6 February 2008 the applicants attended a hearing of the Tribunal at which they gave oral evidence (CB 86.1). 

   On 21 February 2008 the Tribunal handed down its decision (CB 80 to 91).  That decision affirmed the decision of the delegate not to grant the visa.  

   The Tribunal's decision

   The Tribunal:

   a)summarised the applicant husband’s evidence, which was given before that of the applicant wife (CB 86.2 to 87.8);

   b)summarised the applicant wife’s evidence (CB 87.9 to 88.6) and the inconsistencies arising from her husband’s evidence which it put to her (CB 88.2 and 89.7 to 90.1);

   c)put the applicant wife’s evidence to the applicant insofar as there were inconsistencies between the two (CB 88.8 to 89.1);

   d)noted that he applicant had wanted to respond to the information immediately at hearing (CB 89.2);

   e)accepted that the applicants were Chinese nationals (CB 90.2);

   f)found the applicant not to be credible and found that his evidence had changed in respect of significant details through the course of the protection visa application process (CB 90.3 to 90.4);

   g)found the applicant had provided inconsistent testimony in relation to an incident at his restaurant event and his distribution of propaganda materials.  The Tribunal noted the applicant’s response to the inconsistencies was to assert his claims were true, without any explanation for the inconsistencies (CB 90.5);

   h)considered the applicant’s evidence to have demonstrated a “mechanical recitation” of a statement which in conjunction with the unexplained inconsistencies suggested “that the applicant had merely attempted to repeat the contents of the written statement regardless of the truth” (CB 90.6);

   i)was not prepared to place weight on the “certificate of being released” which had been provided to the Tribunal (CB 90.8);

   j)accepted that the applicant husband and wife had had a restaurant in China but was not satisfied that, inter alia, he alleged 2002 incidents had occurred and was accordingly not satisfied that the applicant had suffered harm, let alone harm amounting to persecution (CB 90.9);

   k)was not satisfied there was a real chance of harm befalling the applicant for a Convention reason in the reasonably foreseeable future on return to China (CB 91.1);

   l)noted that the applicant wife had made not substantive claims and, accordingly, as her husband had been found not to be a person to whom Australia owed protection obligations, that she too was not capable of being granted a protection visa (CB 91.3).

2. These proceedings began with a show cause application filed on 18 March 2008.  The applicants continue to rely upon that application.  The application is supported by an affidavit filed on the same day which annexes a copy of the Tribunal decision.  I also have before me as evidence the court book filed on 7 April 2008 and an affidavit by Serena Sarah Miller filed in Court by leave today, which annexes a transcript of the hearing conducted by the Tribunal. 

3. The first applicant denied receiving the Court book.  I accepted as an exhibit (exhibit R1) a copy of a letter dated 8 April 2008 which, on its face, establishes that the applicants were given by hand a copy of the court book on the same day that they attended Court on 8 April 2008.  I went through the documents in the court book with the first applicant and pointed out to him that he should already be familiar with almost all of those documents. 

4. The show cause application discloses three grounds of review. The first of those is an asserted breach of s.424A of the Migration Act. The particulars identify inconsistencies between the applicants' written and oral claims referred to by the Tribunal in its decision. There was no obligation on the Tribunal to disclose inconsistencies between the applicants' written and oral claims because that was not information for the purposes of s.424A: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609. Even if there had been an obligation of disclosure pursuant on s.424A[1], it was open to the Tribunal to meet that obligation orally pursuant to s.424AA, provided that the requirements of that section were met.

   [1] Which is at least arguable in relation to the inconsistencies between the oral evidence of the first and second applicants.

5. The review application was received by the Tribunal on 8 November 2007. On and from 29 June 2007 s.424A(2A) of the Migration Act provided the Tribunal with the option of disclosing disclosable information orally rather than in writing. Having regard to the transcript of the Tribunal hearing, in particular at pages 22 and 23, I am satisfied that in the event that there was any obligation of disclosure pursuant to s.424A, the Tribunal met that obligation pursuant to s.424A(2A) and by meeting the requirements of s.424AA(b)[2]. 

   [2] SZLXR v Minister for Immigration & Anor [2008] FMCA 367

6. The second ground in the application is an assertion of a reasonable apprehension of bias.  The first applicant made extensive oral submissions in which he complained about the inconsistencies relied upon by the Tribunal.  It is obvious that he considers the outcome before the Tribunal, in which he and his wife were not believed, as unfair.  He considers that the Tribunal should have accepted the attempts by him and his wife to explain the inconsistencies identified by the Tribunal.  There is, however, nothing whatsoever in the available material, including the transcript, to provide any support for the asserted reasonable apprehension of bias.  The inconsistencies between the written and oral claims, and the evidence of the first and second applicants, were glaring.  The attempts by the first and second applicants to explain those inconsistencies were unconvincing to the Tribunal and at least in one instance there was no attempt to explain the inconsistency at all. 

7. The conclusion reached by the Tribunal that the applicants' claims lacked credibility was open to the Tribunal on the material before it.  I reject the second ground of review. 

8. The third ground of review is an asserted breach of s.425 of the Migration Act. The applicants contend that they were denied the right to present oral evidence fairly. The court book discloses that notwithstanding two adjournments of the hearing to which the applicants were invited, the Tribunal met its statutory obligations in relation to the invitation extended to them. The applicants attended and gave evidence and answered questions over about two hours. The Tribunal was concerned about inconsistencies between the first applicant's written and oral claims and between the oral evidence of the first and second applicants. Those inconsistencies were put clearly to both applicants by the Tribunal, as is evidenced by the transcript. They were given an opportunity to respond to the Tribunal's concerns.

9. To the extent that the inconsistencies provided a basis for the Tribunal decision about which the applicants were not on notice prior to the hearing, the procedure followed by the Tribunal at the hearing met the obligation on the Tribunal to ensure that the hearing opportunity was a real one.  There was, in this case, no jurisdictional error of the kind identified by the High Court in SZBEL v Minister for Immigration and Citizenship (2006) 231 ALR 592.

10. The process of oral disclosure followed by the Tribunal served the dual purpose of ensuring that the applicants had notice of the essential issues upon which the Tribunal decision was likely to turn and the purpose of ensuring that any obligation of disclosure of information was met pursuant to s.424AA. I see no error in the Tribunal's approach. On the contrary, the approach taken was fair and prudent.

11. I otherwise agree with the Minister's submissions. 

12. I find that the Tribunal decision is free from jurisdictional error.  It is, therefore, a privative clause decision and the application must be dismissed.  I so order.

13. The application having been dismissed, costs should follow the event.  The Minister seeks scale costs in the sum of $5,000.  The second applicant asserted an inability to pay costs.  However, impecuniosity is not a reason for the Court to refrain from making the costs order.  I see no reason to depart from the Court scale in this instance. 

14. I will order that the first and second applicants 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 1 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  28 May 2008

CORRECTIONS

1. Paragraph 4, line 9 – footnote added.

1. Paragraph 5, line 6 – delete “had been”, insert “was”.

1. Paragraph 5, line 7 – delete “would have”.