SZMBX v Minister for Immigration
[2008] FMCA 1090
•16 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1090 |
| MIGRATION – Visa – Protection (Class XA) visa – 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 China – claiming fear of persecution because of political beliefs – credibility – adverse view of applicant’s credibility – no reviewable error. |
| Migration Act 1958 (Cth), ss.420, 424A, 425 |
| SZEPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 107 followed. Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) HCA 6 referred to Randhawa v Minister for Immigration and Ethnic Affairs [1994] 52 FCR 437 SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 |
| Applicant: | SZMBX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 701 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 July 2008 |
| Date of Last Submission: | 16 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2008 |
REPRESENTATION
| The Applicant: | 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 $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 701 of 2008
| SZMBX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of China. He asks the court to review a decision of the Refugee Review Tribunal that was signed on 19 February 2008 and handed down on 28 February. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a protection (Class XA) visa.
The applicant asks the court to make a declaration that the Tribunal decision was invalid and contrary to law. He asks the court for an order in the nature of certiorari quashing or setting aside the Tribunal decision. He asks the court for an order in the nature of mandamus remitting his application for a protection visa to a differently constituted Tribunal to be determined in accordance with law.
I have indicated that if the court is to make those orders, the court must first be satisfied that the Tribunal decision is affected by jurisdictional error.
I have also informed the applicant that if the court were to make an order in the nature of mandamus remitting the application to the Tribunal for determination according to law, there is considerable doubt that the court has the power to make an order requiring the Tribunal to be constituted differently. I am of the view that the constitution of the Refugee Review Tribunal is a matter for the principal member of the Tribunal and that this court does not have the power to make that order. In doing so, I follow the decision of the Full Court of the Federal Court in SZEPZ v Minister for Immigration and Multicultural and Indigenous Affairs[1].
[1] [2006] FCAFC 107
In any event, the applicant has set out in his application four grounds of review. Ground 1 claims that the Tribunal failed to ensure that he understood particulars of the information which the Tribunal considered to be a reason or part of the reason in making its decision and failed to invite him to comment on the information. It is a ground that begins as if it is a claim of a breach of section 424A of the Migration Act, although in its particulars and in the course of the submissions today, the ground appeared to depart into the area of a challenge to the Tribunal’s factual findings and a claim of a failure to provide some form of procedural fairness as required in a hearing under section is 425 of the Migration Act.
The second ground claims that the Tribunal’s decision includes a reasonable apprehension of bias.
The third ground claims that the Tribunal failed to comply with its obligations under section 420 of the Migration Act.
The fourth ground claims specifically that the Tribunal failed to comply with its obligation under section 424A(1) of the Migration Act.
The applicant summarises his grounds by saying:
In summary I have never, ever agreed that my application has been assessed by theTribunal fairly and carefully.
Background
The applicant arrived in Australia on 12 June 2007. He travelled on a passport not from the People’s Republic of China, but from the Republic of China, known as Taiwan, in the name of another person. However, when he arrived in Australia, he applied for a protection (Class XA) visa on 26 July 2007 in his own name and identity, that of a citizen of the People’s Republic of China.
He claimed in a statutory declaration submitted with his application for a visa that he was seeking refugee status in this country on the basis of his political opinion, and he claimed to have organised protests and a very large demonstration against corrupt officials who had earned huge profits from resuming and selling farmland but awarding only small amounts of compensation to the landowners.
He claimed to have been wanted by the PSB, the Public Security Bureau, and had had gone into hiding and was obliged to leave China illegally with the help of friends and was smuggled to Taiwan on a fishing boat. He came to Australia on the Taiwanese passport in a different name.
A delegate of the Minister for Immigration and Citizenship refused the application for a visa on 23 October 2007. The applicant had been required to attend an interview with the minister’s delegate and duly attended and the interview was conducted with the assistance of an interpreter in the Mandarin language.
The delegate was not satisfied about the credibility of the applicant’s claims. In particular, the delegate was not satisfied that the applicant had provided a factual account of his journey from the People’s Republic of China to Australia and, in fact, did not accept that the applicant had left China illegally and travelled to Australia via Taiwan. The delegate did not accept the applicant’s claims concerning his involvement in a public protest in April 2007 or that he came to the adverse attention of the authorities on account of that involvement.
The delegate found there was no evidence that he was the adverse interest in the authorities in relation to any other matter and formed the view that there was no obvious reason that the applicant would not have been in position to apply for and be issued with a passport for the People’s Republic of China.
The delegate refused the application on 23 October 2007 and the applicant with the assistance of a migration agent applied to the Refugee Review Tribunal on 23 November 2007 for review of the delegate’s decision.
Refugee Review Tribunal decision
The Tribunal wrote to the applicant on 20 December 2007 inviting him to attend a hearing on 11 February 2008. The applicant attended that hearing where he gave evidence with the assistance of an interpreter in the Mandarin language. He provided a Chinese identity card in support of his real identity.
The Tribunal handed down its decision on 28 February 2008 affirming the decision of the delegate not to grant the applicant a protection (Class XA) visa.
The Tribunal in its decision record considered the applicant’s claims in evidence based on the applicant’s statutory declaration in support of his application for a protection visa and considered the applicant’s evidence given to the Tribunal hearing.
The Tribunal also considered independent country information on such matters as the treatment of failed asylum seekers returning to China.
The Tribunal noted at page 74 of the court book:
Prior to the conclusion of the hearing, the tribunal asked the applicant if he wanted additional time to comment and/or respond to the information provided in the course of the hearing. The applicant said that he did not want any additional time[2].
[2] See Court Book at page 74
In its findings and reasons, the Tribunal noted that the applicant had arrived in Australia on a Taiwan passport in another person’s name, but had provided a national ID card in his own name. The Tribunal noted that the ID card had been examined by a document examiner who concluded that it was a genuine identity card, and the Tribunal was satisfied that the applicant’s real name was what he said it was and that he was a national of the People’s Republic of China and went on to find that it was satisfied that the applicant did not have the right to enter and reside in Taiwan, or any other country, apart from People’s Republic of China.
The Tribunal then went on to consider the applicant’s evidence in a fair amount of detail describing his claims as a series of unsubstantiated claims[3].
[3] See Court Book at page 75
The Tribunal expressed concern that the applicant had made substantial new claims in the course of the hearing which could raise doubts about his credibility and the veracity of his claims. The Tribunal then set out a number of concerns relating to the evidence of the applicant and why the Tribunal had concerns about the veracity of that evidence.
The Tribunal then went on to say:
The Tribunal has carefully considered the evidence as a whole and the Tribunal acknowledges that the above noted concerns, if viewed in isolation, may be perceived as being minor and unfair. However, when they are considered cumulatively, the Tribunal is satisfied that they are legitimate grounds to impugn the applicant’s credibility.
In considering of the evidence as a whole, the Tribunal finds that the applicant is not a credible witness[4].
[4] See Court Book at page 78 - 79
The Tribunal set out a number of key points of the applicant’s claim that it did not accept as credible, including his claim that he had organised a large demonstration that took place on 27 April 2007 and which he had claimed had been organised on two days notice. The Tribunal did not accept that the demonstration ever took place.
The Tribunal then went on to consider and reject other key aspects of his claims. The Tribunal was not satisfied that the applicant was an adverse interest to the authorities of the People’s Republic of China and went on to make a finding about any concern that he might face persecution on his return to China because of having applied for a protection visa in Australia.
The Tribunal said:
On the basis of the available information, the Tribunal is satisfied that it is improbable that the PRC authorities would have actual knowledge of his application for a protection visa. However, the authorities may, of course, make that assumption. Independent country information indicates that seeking asylum, whether actual or perceived per se, does not mean that the returnee would be harmed. Dissidents on the other hand could suffer harm[5].
[5] See Court Book at page 80
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugee Convention and did not satisfy the criterion set out in sub-section 36(2)(a) of the Migration Act for a protection visa.
The applicant filed an application and affidavit in support in this court on 25 March 2008 seeking review of that Tribunal decision. He has not filed an amended application, although given the opportunity to do so, nor has he filed a written outline of submissions.
The lawyers for the minister have, however, filed a written outline of submissions on 19 May 2008.
The applicant attended court and made oral submissions. I asked him questions about the particulars of some of his claims and he replied to those questions and was then given the opportunity to make an oral submission in support of his claim.
I then heard an oral submission from counsel for the first respondent, Ms Sirtes, and gave the applicant an opportunity to address the court in reply to those submissions. The applicant indicated that he had had some difficulty and needed some time to formulate his thoughts in respect of that submission in reply, so I adjourned the proceedings and allowed him the opportunity to prepare his thoughts. The adjournment, in fact, took longer than was expected and he ended up having approximately 45 minutes in which to prepare his further final submission.
Dealing with the applicant’s claims, the first ground commences as a claim that the Tribunal in some way breached the provisions of section 424A(1) of the Migration Act. The applicant takes exception to the Tribunal’s finding that making substantial new claims in the course of the hearing could raise doubts about an applicant’s credibility and the veracity of his claims. He pointed out that in the letter inviting him to a hearing he had been informed that the purpose of the hearing was an opportunity to give oral evidence in support of his claims and to present an argument against the issues raised in relation to his review application. He reiterated in his submissions that one of the matters that had been made clear to him was that at a hearing he was there to resolve any doubts.
Section 425 requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, see subsection 425(1). The letter written to the applicant on 20 December 2007, being an invitation to attend at the hearing, told the applicant:
The Tribunal has considered the material before it, but is unable to make a favourable decision on this information alone. This letter is an invitation to the applicant listed above to appear before the Tribunal to give oral evidence and present arguments[6].
[6] See Court Book at page 51
The applicant was of the view that the Tribunal was under an obligation either under section 424A, or perhaps section 425, to point out its concerns in the course of the hearing and to make clear to the applicant that its concerns could be relevant in respect of its decision on the review application. He also submitted that during the hearing the Tribunal made him think that it had already understood his claims and never made him realise that it was of the view that his evidence was internally inconsistent and unclear. He asked if the Tribunal had found his evidence had been clear then why did it not put questions to him in order to make its concerns clear.
The first ground and the submissions in support of it have been described by Ms Sirtes of counsel as a ground with an SZBEL-type allegation in it referring to the decision of the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[7].
[7] [2006] FCA 63
The applicant in his submission in reply asked three questions, one of which is pertinent to this ground being in the refusal letter:
The RRT indicated that my oral evidence was unclear. Why did the RRT not point it out at the time of hearing?
There is no requirement under section 424A or section 425 for the Tribunal to provide a running commentary on its thought processes during the applicant’s evidence. There is certainly no requirement for the Tribunal to offer the applicant the opportunity to comment, whether orally or in writing, about the applicant’s own evidence to the Tribunal.
It is well established that sub-section 424A(1) does not apply to information that the applicant gave for the purpose of the application for review or that the applicant gave during the process that led to the decision that is under review other than information that was provided orally by the applicant to the department. See section 424A(3)(b) and (3)(b)(a).
In any event, the Tribunal made it clear in the decision record that when discussing the Tribunal’s concerns about the applicant’s evidence, the Tribunal member asked the applicant if he wanted additional time to comment and/or respond to the information provided in the course of the hearing, and the applicant said that he did not want any additional time. It would appear to me that this was a step taken by the Tribunal member to offer the applicant during the hearing an opportunity to make further submissions and an attempt, therefore, to comply with section 424AA of the Act, but the applicant said at the hearing that he did not want the time to do that.
It would appear to me that whilst the applicant complains that he was not given an opportunity to comment on the Tribunal’s concerns, the decision record said that that is what the applicant was offered.
In my view the applicant’s first ground fails.
The applicant’s second ground claims that the Tribunal has included a reasonable apprehension of bias. The allegation of bias is one which appears regularly in applications for review. In this case the applicant claims an apprehension of bias because the Tribunal found it difficult to accept that he had organised a large anti-government demonstration at short notice when he had not organised any demonstrations previously.
The applicant in his application asks rhetorical questions:
Does the Tribunal have any basic knowledge about well-known movement in 1989. The main leaders of the movement were just young students without any experiences in organising large pro‑democracy movement, but they made the whole world be shocked greatly.
Clearly the applicant is referring to the demonstrations in Tiananmen Square 1989.
That particular claim in the application is, in effect, a challenge to the Tribunal’s factual findings and is an attempt at merits review which, of course, is not available on judicial review of the Tribunal decision[8].
[8] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) HCA 6
Even if the Tribunal did not accept the applicant’s claims, that of itself is no evidence of bias. It is well established that an administrative decision maker is not required to accept uncritically all claims made by an applicant[9].
[9] See Randhawa v Minister for Immigration and Ethnic Affairs [1994] 52 FCR 437
It is well established that bias is a serious application which must be strictly alleged and strictly proved. It is a rare and extreme circumstance that lack of good faith on the part of the administrative decision maker will be apparent by reference only to the reasons for the decision themselves[10].
[10] See SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358, paragraph 16; see also SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at paragraphs 43 and 44.
The applicant has alleged bias. There is no evidence of bias. That claim must fail.
The applicant claims that the Tribunal failed to comply with its obligations under section 420 of the Migration Act. That is a section which provides that the Tribunal in carrying out its functions under the Act is to pursue the objective of providing a mechanism for review that is fair, just, economical, informal and quick.
Sub-section 2 provides that the Tribunal in reviewing a decision,
a)is not bound by technicalities, legal forms or rules of evidence and
b)must act according to substantial justice and the merits of the case.
It should be made clear that the Tribunal’s obligation is to provide a fair process. The applicant claims that the Tribunal failed genuinely to assess evidence favourable to him when it questioned the fact that he had raised substantial new claims of the hearing that had not been included in his statutory declaration when he applied for a protection visa.
He was of the view that the Tribunal in rejecting his claims had arrived at an unfair decision.
It is well established, as I said, that the Tribunal is required to provide a fair process. It may not be the case that a decision arrived at through a fair process may in the long run be regarded as a fair decision, and clearly as counsel for the respondent points out, the applicant does not.
I refer to the decision of Attorney-General New South Wales v Quinn (1990) 170 CLR 1 where Brennan J observed at pages 35 and 36:
The duty in jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If in so doing the court avoids administrative justice or error, so be it, but the court has no jurisdiction simply to cure administrative injustice or error.
The merits of administrative action to the extent that they can be distinguished from legality are for the repository of the relevant power and is subject to political control for the repository alone.
I am not of the view that there is some form of unfairness that involves a breach of section 420 of the Act or for that matter section 425 of the Act. Again, in this fourth ground the applicant complains that the Tribunal failed to comply with its obligations under section 424A(1) of the Act. He complains the Tribunal has considered some pieces of information, such as the information that the Tribunal thought would be inconsistent or unclear, as the reason or part of the reason for affirming the decision that is under review. However:
The Tribunal failed to give particulars of the information, failed to ensure me to well understand that it would be in relation to my review application and failed to give me any chance to make my comment on them.
The fact is that the Tribunal did offer the applicant at the hearing the opportunity to make further comments after the hearing, and he declined.
Secondly, section 424A of the Migration Act does not require the Tribunal to seek the applicant’s comments on his own evidence. It would be an absurd situation if it did.
The applicant in his submission of the refusal letter to the RRT indicated:
I did not have the capacity to organise anti-government activities. Why did the RRT not ask me to provide documentary evidence to prove my claim?
The answer to that is that it is for the applicant to provide evidence to satisfy the Tribunal that the applicant meets of requirements for a visa. It is not for the Tribunal to undertake its own investigations. The Tribunal has a power under section 424 of the Act to ask for more information, but it does not have an obligation to apply that power.
The applicant also asked in his submissions this question:
During the hearing the RRT indicated I had come up with new information but would not say it would use that information to refuse my application. The RRT did not make me aware my application could be refused and did not give me the opportunity to respond to that information.
Whilst I believe that I have answered that question already, I will answer it specifically. There is no obligation on the Refugee Review Tribunal to provide a commentary during the hearing on whether or not it accepts parts or all of the applicant’s evidence. Indeed, as Ms Sirtes for the minister committed, if the Tribunal were to do so, then there is a likelihood that a claim of apprehended bias would be raised. There is no obligation on the Refugee Review Tribunal to inform the applicant that his application could be refused on the basis that he did not accept some or all of his evidence.
The applicant has claimed that the Tribunal did not give him the opportunity to respond to the Tribunal’s doubts about the information which was the information that he provided.
The answer to that is: one, it did offer him the opportunity, and he said he did not need any further time; and two, it was under no obligation to offer the applicant any opportunity to provide comments about his own evidence to the Tribunal.
The Tribunal was not satisfied with the applicant’s overall credibility and the veracity of his claims. This was an issue that was squarely before the applicant, or should have been, because it was that issue that caused the minister’s delegate to refuse the application for a protection visa. The applicant was not or should not have been taken by surprise that his application was not accepted. There is certainly no failure by the Tribunal to follow the directions of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.
The Tribunal was not satisfied as to the applicant’s credibility or the credibility of his account. The Tribunal gave its reasons for that and the reasons were largely due to the Tribunal’s own view of the applicant’s evidence. That was a finding that was open to the Tribunal and credibility is a factual finding which is very much the province of the administrative decision maker[11].
[11] See Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407
I am mindful of the fact that the applicant was not legally represented. Whilst I am satisfied that not one of his grounds establishes jurisdictional error, I am also unable to discern any other 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 and accordingly under sub-section 474(1), the remedies of declaration certiorari and mandamus are unavailable.
It follows that the application will be dismissed with costs.
There is an application for costs on behalf of the first respondent minister. The amount sought is $5,000 inclusive of counsel fees. There have been two prior court events on 14 April and again on
3 June. This was a suitable matter for counsel to be briefed and the figure of $5,000 is a figure provided by the scale.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 5 August 2008
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