SZMHL v Minister for Immigration - [2008] FMCA 1160

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMHL v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1160

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal gave information to the applicant in accordance with s.424AA of the Migration Act 1958 (Cth) – whether breach of s.424AA is jurisdictional error where information is excluded from obligations of s.424A(1).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424AA; 424AA(b); 424AA(b)(ii); 424AA(b)(iii); 424A(1); 424A(3)(a); 474; pt.8 div.2

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZMFR v Minister for Immigration and Citizenship [2008] FMCA 978
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178

Applicant:

SZMHL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1301 of 2008

Judgment of:

Emmett FM

Hearing date:

24 July 2008

Date of last submission:

24 July 2008

Delivered at:

Sydney

Delivered on:

21 August 2008

REPRESENTATION

Applicant appearing on her own behalf

Counsel for the Respondent:

Mr P. Reynolds

Solicitors for the Respondent:

Ms S. Kantaria, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1301 of 2008

SZMHL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

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 4 April 2008 and handed down on 24 April 2008.
The applicant claims to be from the People’s Republic of China (“China”) and to have worked in a clothing shop in China (“the Applicant”).
The Applicant arrived in Australia on 24 July 2007 having departed illegally from Baiyun on a passport issued in her own name and a visa issued on 28 June 2007.
On 6 September 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 6 December 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 4 January 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 4 April 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 21 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 Applicants application for a protection visa

The Applicant provided a statement in support of her protection visa application in which she stated she feared persecution by the Chinese authorities as a result of her organising a women’s rights protest 8 March 2007. The Applicant claimed she and her co-workers were harassed and their business disrupted repeatedly by bullies and that they received no assistance from the Public Security Bureau (“PSB”) or from the Women’s Association. The Applicant stated this prompted her to assist in the organisation of a protest. The Applicant claimed that, as a result of the protests, she was: arrested for anti-government activities; mistreated while in custody; released on payment of a bribe; required to report to the local police station once a week; questioned “often” following her release; and, required to attend a seven day “political study”. The Applicant claimed that she and her co-workers continued to be bullied and closed their shop as “it was impossible for us to continue our business”.

The Delegate’s decision

On 6 December 2007, 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 noted that the Applicant provided little detail at an interview as to how she organised the protests and her responses were “broad and characteristic of rehearsed answers.” The Delegate also found that the Applicant was unable to elaborate on the circumstances surrounding her departure from China at the interview. The Delegate found that, having departed China legally on a travel document in her own name, the Applicant was of no interest to the authorities for any reason at the time she departed. The Tribunal noted country information that indicated that if the Applicant had been on reporting conditions to police following her release from jail she would not have been able to depart China through the normal channels.

The Tribunal’s review and decision

On 4 January 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of her review application.
On 21 January 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 3 April 2008 to give oral evidence and present arguments.
On 3 April 2008, the Applicant gave evidence at the hearing before the Tribunal and expanded upon her written claims. The Tribunal noted in its decision that it discussed with the Applicant: the details of the alleged protest on 8 March 2008; the Applicant’s arrest and detention; the Applicant’s departure from China; and, independent country information.
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 found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“5.The applicant claims to fear persecution in China by reason of her political opinion. Specifically, she claims:
(a)in January 2005 she opened a clothing shop with her friends. Although business was good, she experienced problems with local bullies and was subject to “humiliation, insult and sexual harassment”;
(b) the local police would not assist her;
(c)on 17 February 2007 a local bully named “Zheng” and ten others came to her shop and “destroyed properties in the shop” – again the local police would not help;
(d)on 8 March 2007 she and her partners organised a demonstration involving 50 to 60 women to protest the lack of protection for women and to urge the government to respect and protect women's human rights;
(e)she prepared five banners with the word “protest” written on them;
(f)the protest was suppressed by the PSB, she was arrested for anti-government activities, detained for one month during which time she was “physically and mentally tortured” by police and authorities;
(g)upon her release she continued to be harassed by the police so she fled China.
6.The Tribunal affirmed the delegate’s decision not to grant a protection visa.
7.The Tribunal’s basis for affirming the delegate’s decision was the Tribunal’s finding that the applicant was not a credible witness[1].
[1] GB 85.7.
8.The Tribunal did not accept the applicant's claims because of:
(a) the applicant's oral evidence at the hearing;
(b)its consequent serious doubts about the applicant’s credibility; and
(c) the absence of supporting evidence[2].
9.The Tribunal found that the applicant’s fear of persecution for her political activities or opinions were not well-founded. Further, the Tribunal was not satisfied that the applicant had suffered any harm in China by reason of her political activities or opinions, or that harm would befall her if she returned to China[3].
10. The Tribunal considered whether the applicant may be considered a member of particular social group, being membership of women’s and/or small business groups, but was not satisfied the applicant suffered harm by reason of her membership of a particular social group.
11. The Tribunal found that based upon consideration of the applicant’s membership of a particular social group, the applicant did not have a well-founded fear for a Convention reason[4].”
[2] GB 85-86.
[3] GB 86.2.
[4] GB 86.6.

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 NSW RRT Legal Advice Scheme.
The Applicant confirmed that she relied on the grounds contained in an application filed on 21 May 2008.
The grounds of the application are expressed to be as follows:
1 “The Tribunal failed to comply with its obligations under s.424AA or s.424A(1) of the Act”
2“The Tribunal failed to comply with its obligations under s.424AA of the Act”
The Applicant did not file any evidence or submissions in support of her application and declined to make oral submissions.

Ground 1 – “The Tribunal failed to comply with its obligations under s.424AA or s.424A(1) of the Act”

The finding made by the Tribunal relied upon by the Applicant as supporting Ground 1 is as follows:
“Based on the oral evidence provided by the applicant at the hearing and the Tribunal’s consequent serious doubts about the applicant’s credibility, and in the absence of supporting evidence, the Tribunal does not accept the applicant’s claims…”
The particulars of Ground 1 state that from the Tribunal’s words:
“It is apparently that the Tribunal made its finding not only based “on the oral evidence provided by the applicant at the hearing” but also considering the information of “in the absence of supporting evidence” as part of reason.”
I understand the particulars provided in support of Ground 1 to relate to the adverse credibility findings made by the Tribunal in respect of the Applicant’s evidence.
The Tribunal’s adverse credibility findings were based on the lack of detail provided by the Applicant about the protest in which she claimed to have been involved. The Tribunal gave the example that the Applicant claimed that the banners prepared for the protest had only the word “protest” written on them rather than some other reference as to the reason for the protest. The Tribunal also found that the Applicant was also unable to describe her experiences while in detention “in any credible detail”. The Tribunal found that the fact that the Applicant was allowed freely to depart China using her own passport suggested she was not of particular adverse interest to the authorities. The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
A fair reading of the Tribunal’s decision makes clear that the Tribunal’s adverse credibility findings arose from its subjective evaluations and appraisals of the evidence given by the Applicant to the Tribunal. Such thought processes by the Tribunal are not “information” that enliven the obligations of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17]-[18]).
In relation to s.424AA, in my view, the “information” referred to in s.424AA has the same meaning as “information” in s.424A(1) (SZMFR v Minister for Immigration and Citizenship [2008] FMCA 978 (“SZMFR”) at [38]).
Accordingly, the “information” relied upon by the Applicant in support of ground 1 is not “information” within the meaning of either ss.424A(1) or 424AA.
In the circumstances, no obligation arose pursuant to either s.424A(1) or s.424AA on the part of the Tribunal.
Accordingly ground 1 is not made out.

Ground 2 – “The Tribunal failed to comply with its obligations under s.424AA of the Act”

In support of Ground 2, the Applicant provided the following particulars:
“At the Tribunal’s hearing, the Tribunal might have given me the information that my evidence, which I was able to leave China on a passport in my own name, was inconsistent with the evidences obtained from country information.
However, the Tribunal failed to make it clearly; and particularly, the Tribunal failed to ensure, as far as is reasonably practicable, that I understand why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review. The Tribunal might have orally invited me to comment on or respond to the information; but the Tribunal failed to advise me that I may seek additional time to comment on or respond to the information; and that if I seek additional time to comment on or respond to the information.”
On one reading, the information identified by the Applicant in the particulars as enlivening the obligations of s.424AA are the inconsistencies between the country information obtained by the Tribunal and the Applicant’s evidence. If that is the only information relied upon by the Applicant as enlivening the obligations of s.424AA of the Act, again, inconsistencies expressed by a Tribunal are no more than its thought processes of its evaluation and appraisals of the Applicant’s evidence. As referred to in Ground 1 above, such “thought processes” are not “information” for the purpose of s.424A(1) or s.424AA of the Act (SZBYR at [17]-[18]; SZMFR at [38]).
If the information is intended to include the country information, such country information is capable of being “information” for the purposes of s.424AA.
However, it is for the Tribunal to decide whether or not it wishes to put to the Applicant information in accordance with s.424AA. If it does so, then it must comply with the requirements of s.424AA(b) of the Act.
Section 424AA of the Act is as follows:
“If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.” [Emphasis added].
The particulars in support of Ground 2 contend that, in breach of s.424AA(b)(ii) and (iii), the Tribunal failed to advise the Applicant that she may seek additional time to comment on or respond to the information and that, if she did seek additional time to comment or respond to the information, the Tribunal should adjourn the review if the Tribunal considered that the Applicant reasonably needed additional time to comment or respond to the information.
In relation to the country information, the Tribunal stated the following:
“The Tribunal referred to advice by DFAT that China’s law relating to the departure of Chinese nationals from China indicated that certain specified groups of people of adverse interest to the authorities were not allowed to leave China. The Tribunal said that the fact that the applicant was allowed freely to depart China using her own passport may indicate that she was not of particular adverse interest to the authorities and that this in turn may be a reason for affirming the delegate’s decision to refuse her Protection visa application. The applicant responded that she had paid a friend with relevant contacts to ensure that she was not included in any blacklist held by the authorities when she departed China. The Tribunal asked the applicant whether she needed any more time to comment on the country information put to her; the applicant did not request any further time.”
A fair reading of the Tribunal’s decision record makes clear that the Tribunal asked the Applicant whether she needed any more time to comment on the country information and noted that the Applicant did not request any further time. The Tribunal’s decision record made no specific reference to s.424AA of the Act.
Counsel for the First Respondent submitted that it is for the Court to analyse objectively whether or not any “information” given by the Tribunal to the Applicant was done so in accordance with s.424AA, irrespective of whether or not the Tribunal purports to do so expressly. That may be so, however, s.424AA does not impose a mandatory statutory obligation.
The decision record does not make clear that the Tribunal complied strictly with ss.424AA(b)(ii) and 424AA(b)(iii). One explanation for that may be that the Tribunal was not intending to give the Applicant the country information to which it had regard in accordance with s.424AA. Certainly, it was not obliged to do so.
If the Tribunal otherwise gave information to the Applicant that may be part of its decision for affirming the decision under review, it must do so in accordance with s.424A(1) of the Act. Section 424A(1) of the Act imposes a mandatory statutory obligation on the Tribunal in relation to the giving of certain information. There can be no partial compliance with a mandatory statutory obligation (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 (“SAAP”) at [77]).
However, because a failure by the Tribunal to comply with s.424AA is not a failure to comply with a mandatory statutory obligation, a failure to comply with s.424AA is not a failure that goes to the heart of the decision making process (SAAP at [77]).
Accordingly, in the circumstances, if the Tribunal purported to put “information” to the Applicant pursuant to s.424AA that may be part of the reason for affirming the decision under review, and yet did not comply with s.424AA of the Act, then s.424A(1) of the Act continues to apply to such “information”. As stated above, whilst country information is also capable of being “information” for the purpose of s.424A(1) of the Act, that information is specifically excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act (VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [12]-[18]).

In circumstances where such “information” is “information” that is excluded from the obligations of s.424A(1) of the Act, then there can be no error on the part of the Tribunal going to its jurisdiction because it did not give such information to the Applicant in accordance with s.424AA(b) of the Act. In the circumstances, there cannot be any error on the part of the Tribunal going to its jurisdiction for it to fail to give that information in accordance with s.424AA of the Act.
Accordingly ground 2 is not made out.

Conclusion

A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided by the Applicant in support; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
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-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 20 August 2008