SZMDL v Minister for Immigration
[2008] FMCA 964
•11 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMDL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 964 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in China – applicant not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| Minister for Immigration v Eshetu (1999) 197 CLR 611 SZBPQ v Minister for Immigration [2005] FCA 568 SZBYR v Minister for Immigration [2007] HCA 26 |
| Applicant: | SZMDL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 912 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 11 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms T Quinn DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 912 of 2008
| SZMDL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 20 March 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China and had made claims of political and religious persecution. Background facts relating to the applicant's claims and the Tribunal decision on them are conveniently summarised in the Minister's written submissions filed on 3 July 2008. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 7.4 of those submissions:
The applicant is a male citizen of China born on 23 June 1978.[1] He arrived in Australia on 11 February 2007.[2]
[1] court book (“CB”) 1
[2] CB 26
The applicant applied for a Protection (Class XA) visa on 28 March 2007.[3] His claims were set out in a statement accompanying the application.[4] The application was refused by a delegate of the Minister on 15 May 2007.[5]
[3] CB 1
[4] CB 28
[5] CB 40
The applicant applied to the Tribunal for review of the delegate's decision on 15 June 2007.[6] The applicant gave oral evidence before the Tribunal on 19 July 2007 and 18 December 2007.[7]
By decision signed on 11 March 2008 and handed down on 20 March 2008 the Tribunal affirmed the decision under review refusing to grant the applicant a protection visa.[8]
The decision of the Tribunal
The applicant claimed to fear persecution because of his Christian religion. In particular, he claimed to be a member of an underground Christian Church and to have been involved in spreading religious propaganda over the Internet. The applicant further claimed to fear persecution because of his political opinion, and to have published articles concerning political matters.
The Tribunal found that the applicant was not a witness of truth. It rejected his claims to be a committed Christian who posted articles on the Internet and was detained and harmed for these actions. The Tribunal gave the following reasons for so finding:
a)The applicant's oral evidence was inconsistent with his Protection Visa Application (PVA) concerning whether the applicant had been baptized.
b)The applicant gave oral evidence that he took no positive act to become Christian and just attended Christian gatherings because his friends took him there.
c)The applicant's claims about posting articles on the Internet were implausible. The applicant was unable to satisfactorily describe the content of the articles. The one article he did describe was an anti-government article regarding a motor vehicle accident, whereas in his PVA the applicant claimed to have posted religious articles.
d)The applicant's profile in his PVA was inconsistent with his profile in his visitor visa application (particularly regarding where the applicant was living and working). The Tribunal did not accept that the applicant lived in Fujian or worked in a computer shop there.
[6] CB 49
[7] CB 62; 84
[8] CB 102
These proceedings began with a show cause application filed on 15 April 2008. The applicant continues to rely upon that application. The application asserts that there was an error of law in the Tribunal's decision constituting jurisdictional error and that there was a procedural error in the Tribunal's decision constituting an absence of natural justice.
In relation to the first ground, the applicant asserts that the Tribunal failed to act according to substantial justice and the merits of the case. The particulars restate substantially the applicant's responses to invitations to comment sent to him pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). In relation to the second ground, the applicant asserts a breach of s.424A of the Migration Act.
The applicant asserts that although the Tribunal made disclosures pursuant to that section, it failed to provide particulars of the relevant information honestly and fairly. He asserts that the Tribunal failed to ensure honestly and fairly that he understood why the information was relevant to the review and failed to invite comment honestly and fairly.
The application is supported by a short affidavit filed on the same day which I received. I also have before me as evidence the court book filed on 27 May 2008.
To the extent that the applicant seeks to draw support from s.420(2)(b) of the Migration Act, the application is misconceived. The High Court found in the Minister for Immigration v Eshetu (1999) 197 CLR 611 at 628 that that provision is facultative and not restrictive. To the extent that the provision provides any positive direction to the Tribunal, it is exhortative, not mandatory. Even if I were satisfied that the section had been breached, which I am not, the breach would not constitute a jurisdictional error[9].
[9] SZBPQ v Minister for Immigration [2005] FCA 568 at [15]
More generally, there is no doubt that the Tribunal decision turns upon its rejection of the applicant's credibility as a witness. I accept the Minister's submission that the adverse credibility findings made by the Tribunal were open to it on the material before it. The applicant in his oral submissions accused the Tribunal of bias, which was not an assertion raised in the show cause application, but there is nothing in the available material to support that allegation. On my reading of the Tribunal decision it is a very thorough and careful analysis of the applicant's claims. The inconsistencies between the applicant's written and oral claims were stark. His attempts to explain those inconsistencies were unpersuasive.
The alleged want of procedural fairness relies upon s.424A. The Tribunal sent three invitations to the applicant pursuant to that section. The first invitation dated 4 September 2007 drew attention to inconsistencies between the applicant's protection visa claims and those he had made in a visitor visa application. His personal profile, including details of residence, occupation and family connections, were inconsistent. The claims in the visitor visa application were supported by documentary material. Those in the protection visa application were not.
The applicant, in response to that invitation through his agent, sought to explain away the inconsistency by suggesting that the details in the visitor visa application were false and provided by a friend without his knowledge. In his oral submissions the applicant sought to assert that the Tribunal was in error in not requiring from him documentary information to support the version in his protection visa application.
I reject that contention.
In the first place, it was obvious from the first s.424A letter what the problem was. If the applicant had documents to back up his assertion that the claims in the protection visa application were correct, he should have provided them. I note that in acknowledging his protection visa application by letter dated 18 June 2007 the Tribunal pointed out to the applicant through his migration agent the importance of sending the Tribunal any documents, information or other evidence he might want the Tribunal to consider (see CB 55).
Further, in the light of the applicant's response to the first s.424A invitation, the Tribunal provided the applicant with a second hearing. The Tribunal raised with the applicant at that hearing a range of further concerns it had about his claims. However, the Tribunal also took the opportunity to invite the applicant to explain why he had not since the Tribunal wrote to him pursuant to s.424A on 4 September 2007 sent to the Tribunal documents to support his claim. He did not answer the question. He simply brushed aside the question by asserting again that he knew nothing of the material put in his visitor visa application[10].
[10] CB 114
The Tribunal did not stop there, but sent the applicant two further invitations to comment on 18 January 2008 and 21 January 2008. Those letters addressed other matters of concern to the Tribunal. Again, the Tribunal was not satisfied with the applicant's response.
It is arguable that the Tribunal went beyond its statutory obligations in sending the three invitations to comment to the applicant. Generally, the Tribunal was dealing with inconsistencies between the applicant's written and oral claims to the department and to the Tribunal. As was found by the High Court in SZBYR v Minister for Immigration [2007] HCA 26 at [17] to [18], s.424A does not oblige disclosure of subjective appraisals, thought processes or determinations and neither does the section extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps. If anything, the Tribunal provided this applicant with a surfeit of procedural fairness, not a lack of it. To the extent s.424A was engaged, the Tribunal met its obligations to clearly identify the relevant information, to explain the significance of that information for the review and to invite comment on it. I reject the grounds of review advanced in the application.
The applicant complained during the course of oral argument that he had not received advice from his panel advisor appointed under the Minister's Panel Advice Scheme. I note that the applicant elected to participate in the panel advice scheme on 14 May 2008. The following day the Court registry wrote to the applicant at his postal address advising him that Mr Leonard Karp had been appointed as his panel adviser and providing Mr Karp's address and telephone contact details. On the same day the registry wrote to Mr Karp providing him with the applicant's postal address and mobile telephone number. The applicant complains that he did not receive the letter that was sent to him.
He asserts that he was advised by friends to do nothing and to simply await receipt of a letter. I note that an officer of the registry had a conversation with Mr Karp on 15 May 2008 in which Mr Karp advised that he would be able to provide advice to the applicant by 27 June 2008. There is no indication from the correspondence file of what ultimately happened. I am satisfied, however, that the Court has met its obligations to facilitate the provision of advice to this applicant.
I find that the decision of the Tribunal in this matter is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. The Minister seeks costs fixed in the amount of $3,000. Scale costs under the Court rules would be $5,000. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 July 2008
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