SZMFR v Minister for Immigration
[2008] FMCA 978
•15 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 978 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424AA of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal was biased. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(2A); 424A(3); 424AA; 424AA(b); 474; pt.8 div.2 |
| SZLTC v Minister for Immigration and Citizenship [2008] FMCA 384; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; Refugee Review Tribunal, Re: Ex parte H (2001) 75 ALJR 982; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 |
| Applicant: | SZMFR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1162 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 15 July 2008 |
| Date of last submission: | 15 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2008 |
REPRESENTATION
| Applicant appeared in person assisted by an interpreter |
| Solicitors for the Respondent: | Mr B. O’Brien, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1162 of 2008
| SZMFR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 April 2008 and handed down on 10 April 2008.
The applicant is a citizen of the People’s Republic of China (“China”) and claims to fear persecution in China by the Public Security Bureau (“PSB”) as a result of her involvement in the writing, printing and distribution of letters of protest against the “corrupt Communist dictatorship” (“the Applicant”).
The Applicant arrived in Australia on 12 September 2007 on a subclass TR-676 visitor visa which was issued on 28 August 2007.
On 26 October 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 24 January 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 22 February 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 1 April 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 8 May 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of her protection visa application in which she stated that a friend of hers was abused by a man, Mr C-, who used to be a member of the People’s Liberation Army. The Applicant stated that, on 6 May 2007, her friend sought refuge with the Applicant in her home following a beating by Mr C-. The Applicant stated that on 20 May 2007 Mr C- “took about 20 bullies to break into my home” and removed the Applicant’s friend from her home and destroyed the Applicant’s property and beat the Applicant. The Applicant stated that she reported the incident to the PSB who warned her “not to make troubles with the government”.
Thereafter, the Applicant stated that she enlisted a relative, Ms L-, to draft an anonymous letter to protest against “corrupt Communist dictatorship”. The Applicant stated that she made 20,000 copies of
the anonymous letter and arranged for their wide distribution.
The Applicant stated that in August 2007 the PSB investigated the source of the anonymous letter and that the Applicant was questioned by the PSB five times. The Applicant stated that her relative, Ms L-, was subsequently arrested by the police and confessed to the PSB the involvement of the Applicant in the initiation of the letter and its distribution.
The Applicant claimed that, as a result, she left China on 11 September 2007 with the help of her friends.
The Delegate’s decision
On 24 January 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Delegate accepted independent country information that disclosed domestic violence issues in China and corruption at the local level within the PSB. However, the Delegate found the Applicant’s claims not to be credible, having regard to the lack of supporting evidence and inconsistencies in the Applicant’s claims and the lack of detail provided by the Applicant in support of her claims.
On 22 February 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided a further statutory declaration sworn on 21 March 2008 and her passport in support of the review application. On 10 April 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Tribunal’s review and decision
On 5 March 2008 the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 25 March 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.
On 7 March 2008 the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”).
On 21 March 2008 the Applicant responded to the s.424A Letter by facsimile, enclosing a statutory declaration sworn that day and addressing: the independent country information identified by the Tribunal; how she obtained her passport; the delay in the Applicant’s lodging of her protection visa application; her claim that she departed China illegally; and the her claim that she had committed a crime in China.
On 25 March 2008, the Applicant gave evidence at the hearing before the Tribunal in which the Applicant expanded upon her written claims.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal summarised in detail the Applicant’s claims in support of her protection visa application and her response, dated 28 March 2008, to the Tribunal’s s.424A Letter. The Tribunal noted exchanges that it had with the Applicant about her evidence and noted matters of concern to the Tribunal arising from her evidence and noted the Applicant’s responses. The Tribunal identified independent country information to which it had regard.
The Tribunal found the Applicant was not a witness of truth.
The Tribunal found the Applicant to be evasive and, on occasion, not responsive to the Tribunal’s questions, particularly where the questions went beyond the information in the Applicant’s statement.
The Tribunal found that the Applicant appeared to have memorised her statement. The Tribunal found the Applicant’s evidence “to be vague and lacking in detail and it changed in response to Tribunal’s concerns” and identified those concerns. The Tribunal found some of the Applicant’s claims to be “highly unlikely, if not implausible”, and identified those claims.
The Tribunal rejected the Applicant’s claims in their entirety. However, the Tribunal had regard to independent country information before it that the protection for women suffering domestic violence in China may not be adequate.
The Tribunal considered the Applicant’s claims “singularly and cumulatively” and found there was no real chance that the Applicant would be persecuted for a Convention reason if she were to return to China now or in the foreseeable future.
Accordingly the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter. The Applicant has participated in the Legal Advice Scheme.
The Applicant confirmed that she relied on the grounds contained in an application filed on 8 May 2008.
The grounds of the application are expressed to be as follows:
“1. The Tribunal failed to comply with its obligation under s.424AA of the Act.
2. The Tribunal’s decision has included apprehended bias.
3. I never ever believe that my application has been assessed by the Tribunal, fairly and carefully.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of her application generally.
The Applicant confirmed that she had filed no evidence or submissions in support of her application.
The Applicant told the Court that she had said everything possible to the Tribunal at the hearing, that the Tribunal’s decision was wrong, that she had told the truth to the Tribunal, that the PSB was still looking for her in China and she was scared to go back to China. The Applicant then commenced to repeat her factual claims. The Court explained to her that unless it was satisfied that the decision of the Tribunal was affected by a legal mistake it had no power to grant her relief.
The Court explained to the Applicant that disagreement with the findings and conclusions of the Tribunal alone was not sufficient to demonstrate such a legal mistake.
Ground 1
In support of ground 1 the Applicant provided particulars that cited s.424AA of the Act and identified three findings of the Tribunal that the Applicant contended enlivened the obligations of s.424AA of the Act and with which the Tribunal did not comply. The findings of the Tribunal particularised by the Applicant are as follows:
i)“…the applicant appears to have memorised her statement and had difficulties addressing maters (sic) not contained in the statement. When faced with difficult questions, the applicant claimed that she was nervous and forgetful due to her age, however these symptoms appeared to have affected the applicant only under circumstances where she had difficulties answering the Tribunal’s questions while she had no difficulty with evidence relating to the matters contained in her statement”
ii)“…the applicant initially claimed in oral evidence that Mr. C[-] came to her home twice but later stated that it was three times. She initially stated that Ms. L[-] came to her home before she left China and later stated that it was after she left China. She had difficulties describing the details about the content of the anonymous letter she claims to have helped organized (sic). The applicant also appeared to have difficulties explaining how Ms. L[-] came to the attention of the authorities and provided an explanation only after persistent questioning by the Tribunal…”
iii)“… the applicant’s status as a leader and organizer of a women’s movement is inconsistent with her claimed lack of education, ‘old age’ and forgetfulness.”
In relation to i) above, a fair reading of the Tribunal’s decision record makes clear that the Tribunal is expressing no more than its subjective appraisals and evaluation of the Applicant’s evidence.
I accept the submissions of the First Respondent as to the purpose of s.424AA as follows:
“Ground 1 - failure to comply with section 424AA
19. Section 424AA applies to review applications made after 29 June 2007, when the section commenced operation. This section provides a discretion[1] in the RRT to give oral particulars of information that would be the reason or part of the reason for affirming the decision under review to the applicant orally at a section 425 hearing.
20. The legislative history of section 424AA demonstrates that this section was intended to provide a mechanism whereby the RRT could avoid the need to comply with section 424A.[2] Section 424AA was intended to complement the existing obligation under section 424A, such that, if the RRT adopts the procedure in section 424AA, it is relieved from compliance with section 424A in respect of the same information.[3] The complementary purpose of s 424AA is further apparent from the new subsection 424A(2A).
21. Section 424AA was not intended to expand the RRT’s obligation to provide procedural fairness. The Explanatory Memorandum states[4] that:
These amendments are designed to ensure that applicants are still provided with procedural fairness whilst providing flexibility to the Tribunals in how they meet their obligations. …
22. That is, the purpose of the amendments was to maintain the scope of the RRT’s obligation to provide procedural fairness to an applicant but to provide greater flexibility in the manner in which this obligation might be satisfied.”
[1] SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 per Marshall J at [12].
[2] Section 424AA was intended to address the mischief of the literal approach to providing applicants with procedural fairness that the High Court adopted in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and the practical ramifications that this was having on the operations of the Tribunal: see in this regard the Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006.
[3] Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth) at [48], [52].
[4] Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 at page 4 paragraph [3].
Consistent with the purpose referred to in the submissions of the First Respondent above, is to construe “information” in s.424AA in the same manner as “information” has been construed by the Courts in s.424A.
I note that a similar approach was taken by Driver FM in SZLTC v Minister for Immigration and Citizenship [2008] FMCA 384 at [18]-[19].
In particular, both s.424A and s.424AA refer to “any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review”. Further, the amendment of s.424A(2A) underlines the complementary purpose of s.424AA with s.424A. Section 424(2A) states as follows:
“s.424A(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA”
Subjective appraisals of the Applicant’s evidence are not information that enliven the obligations of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17]-[18]).
In the circumstances, subjective appraisals are not “information” for the purposes of s.424AA of the Act.
Further, s.424AA of the Act does not compel the Tribunal to give orally to an applicant any particulars of any particular information. However, if a Tribunal purports to give particulars of information orally to an applicant pursuant to s.424AA of the Act, then it must comply with the requirements of s.424AA(b) of the Act in doing so. In the proceeding before this Court, the information particularised at paragraph i) above, was not “information” that the Tribunal exercised its discretion to give to the Applicant pursuant to s.424AA of the Act. Further, as stated above, it does not comprise “information” that would enliven any obligation under either s.424AA or s.424A of the Act because it is the Tribunal’s objective evaluations and appraisals of the Applicant’s evidence.
Moreover, in the context of the complementary nature of s.424AA to s.424A of the Act, if s.424AA of the Act is not enlivened by the Tribunal, then s.424A of the Act applies in the usual way to information considered by the Tribunal to be part of the reason for affirming the decision under review, including the exclusion of the information referred to in s.424A(3) of the Act.
In relation to paragraphs ii) and iii) above, the “information” to which the Tribunal had regard in making adverse findings is in the nature of “inconsistencies” found by the Tribunal to exist in the evidence given to it by the Applicant in support of her application for review.
Again, for the same reasons as referred to above, such “inconsistencies” are not “information” for the purposes of s.424AA of the Act, consistent with the principle that “inconsistencies” are not “information” that enliven the obligations of s.424A of the Act (SZBYR at [18]).
Accordingly, ground 1 is rejected.
Ground 2
To the extent that ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
The Applicant was directed on 5 June 2008 by this Court to file and serve any affidavit containing additional evidence to be relied upon including the transcript of the hearing. The Order informed the Applicant that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that a tape recording would not be received without leave of the Court obtained prior to the hearing.
As stated above in these Reasons, the Applicant confirmed that no further evidence had been filed by her or on her behalf in support of her application to this Court.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115])”.
The particulars provided in support of ground 2 are more in the nature of a disagreement with the findings of the Tribunal and its rejection of the Applicant’s claims. The Tribunal’s adverse findings were open to it on the evidence and material before it and for the reasons it gave. Such a disagreement does not indicate bias (SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 at [38])
Otherwise, a fair reading of the Tribunal’s decision makes clear that the Tribunal accurately summarised the written claims made by the Applicant; noted in detail the oral evidence given by the Applicant to the Tribunal at the hearing and exchanges that the Tribunal had with the Applicant about her evidence; noted in detail the Applicant’s response to the Tribunal’s s.424A Letter; identified the independent country information to which it had regard; made findings that were open to it on the evidence and material before it; applied the correct law to its findings in concluding that there was not a real chance that the Applicant would be persecuted for a Convention reason if she were to return to China now or in the reasonably foreseeable future and therefore the Applicant was not a person to whom Australia has protection obligations under the Refugees Convention
Otherwise, ground 2 is no more than a disagreement with the findings of the Tribunal, thereby inviting merits review which this Court cannot undertake (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [195]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41per Mason J).
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 is not supported by particulars and does not disclose any error capable of review by this Court. A fair reading of the Tribunal’s decision does not support the allegation of ground 3. Further, I accept the submission of the First Respondent that “there is nothing on the face of the RRT’s decision to suggest that it failed to consider the Applicant’s claims in good faith or that it pre-judged the issues to be decided: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 794 at [43]-[48]; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.”
Conclusion
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 15 July 2008
2
14
2