SZMHY v Minister for Immigration

[2008] FMCA 1161

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMHY & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1161

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Briginshaw v Briginshaw (1938) 60 CLR 336
Minister for Immigration v SGLB (2004) 207 ALR 12
NAHI v Minister for Immigration [2004] FCAFC 10
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64
SZITB v Minister for Immigration and Citizenship [2007] FCA 1954

First Applicant: SZMHY

Second Applicant: SZMHZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1334 of 2008

Judgment of: Driver FM

Hearing date: 18 August 2008

Delivered at: Sydney

Delivered on: 18 August 2008

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Mr A Markus
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1334 of 2008

SZMHY

First Applicant

SZMHZ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 1 May 2008. The Tribunal affirmed a decision of a delegate Minister not to grant the applicants protection visas. There are two applicants, a husband and a wife.  Background facts relating to their claims are set out in the Tribunal reasons. The applicants arrived in Australia from China on 3 September 2007. They applied to the Minister's Department for protection visas on 17 October 2007. The Minister's delegate refused that application on 15 November 2007. The applicants sought review of that decision before the Tribunal on 14 December 2007.

2. The applicants' claims are set out in a statement attached to their protection visa application. Those claims detailed an assertion of political persecution based upon the principal applicant's leadership of opposition to a military training base. The applicants attended an interview before the Minister's Department on 12 November 2007. They were also invited to and attended a hearing before the Tribunal.

3. The Tribunal decision sets out at length the discussion of the claims that occurred at the hearing. The Tribunal took evidence from both the principal applicant and the second applicant. After the hearing, the Tribunal wrote to the applicants pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) seeking comment on adverse information. The particulars drew attention to inconsistencies and implausibilities in the principal applicant’s oral and written statements as well as information in his passport. The applicants responded through their migration agent on 25 March 2008.

4. The Tribunal found that the principal applicant was not a reliable, credible and truthful witness. The Tribunal drew attention to inconsistencies between what the principal applicant said to the Department and what he told the Tribunal. The Tribunal also drew attention to implausibilities in the principal applicant's claims. The Tribunal found that the principal applicant's oral evidence showed a propensity to tailor his evidence in a manner which achieved his own purposes. The Tribunal noted that no specific Convention claims were made by the second applicant.

5. These proceedings began with a show cause application filed on 26 May 2008. The applicants continue to rely upon that application although the principal applicant handed up in Court today a document headed "Additional Particulars" which added three particulars to the six set out in the application. The application also sets out seven grounds. It is unclear which particulars relate to which grounds or whether the particulars themselves are meant to be considered as separate grounds. I incorporate in this judgment the grounds and particulars set out in the application and the additional document:

   1. The Tribunal failed to act judicially and afford procedural fairness.

   2.The Tribunal failed to investigate the applicant’s genuine claims.

   3.The Migration agent made the applicant[‘s] protection visa application and wrote the statement for the applicant which may conclude misleading information that the applicant don’t know.

   4.The Migration agent made the written response to the Tribunal’s 424A letter and didn’t tell the applicant what he wrote in the letter which definitely cause the inconsistency of the applicant’s claims.

   5.The Tribunal misunderstood and failed to apply the correct test in order to be satisfied as to whether the Applicant had a well-founded fear of persecution for a Convention reason on the grounds of religion.

   6.The Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims.

   7.The Tribunal failed to comply with s.424A of the Act.

   Particulars

   1.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome.  The Tribunal ought to use [all the] information for matter of reasoning and evaluation of my case for protection visa.

   2.The Tribunal did not centralised the applicant’s claim and correctly identify the applicant’s well found fears of persecution on the grounds of political opinions if returned to PRC.

   3.The migration agent wrote the statement for me and asked me to sign up the forms without explaining to me what the forms for.

   4.The migration agent ought to explain to me in details about the reasons for the decision of the department.  However, he only told me it’s refused and come to sign up the forms.

   5.The migration agent ought to explain to me about the RRT decision and what’s the reasons.  However, he only told me it’s refused by mobile.

   6.I didn’t receive the 424A letter regarding to response to the Tribunal and didn’t know what my agent wrote to the Tribunal, which cause the inconsistency of my claims.

   Additional particulars

   1.The tribunal was preoccupied and didn’t consider my genuine claim fairly.

   2.The tribunal didn’t consider my new information about my persecution and didn’t give me chance to explain it.

   3.The tribunal didn’t consider thoroughly the fact that I had difficulty to escape out of china with my wife and leave my 3 young children alone in China, among whom the youngest one is only 3 years old.

6. I received as evidence an affidavit made by the principal applicant on 26 May 2008. I also received the book of relevant documents filed on 8 July 2008. I have the benefit of written submissions filed on behalf of the Minister on 14 August 2008. The applicants did not file written submissions but took the opportunity to make oral submissions at the hearing today.

7. Unfortunately, those oral submissions were not of assistance. The principal applicant simply reiterated the various claims contained in the application. When I asked him to explain the assertions he was making, he moved on to a different assertion. He asserted that the Tribunal did not consider his claims fairly or carefully and drew attention to the fact that he was not believed. He asserted that the Tribunal erred by not investigating his claims. He asserted that the Tribunal did not consider the declaration accompanying his protection visa application. He also asserted that his migration agent did not explain clearly what was in various documents received from or sent to the Tribunal. He claimed that he did not see the letter sent to the agent pursuant to s.424A. He did, however, acknowledge that the signature on the statement sent in reply to that letter was his (court book, page 95).

8. The second applicant who also attended the hearing today indicated at the outset that she wished to make her own submissions, but when I invited her to speak, she had nothing to say.

9. While the grounds raised by the applicants are numerous, there is no substance to them. There was nothing unfair about the Tribunal proceeding. The applicants were properly invited to a hearing and did attend and gave oral evidence. The Tribunal arguably went beyond its obligations under s.424A of the Migration Act in inviting comment on what the Tribunal saw as inconsistencies in the principal applicant's written and oral statements. There was nothing unlawful in that approach by the Tribunal, which was prudent.

10. The Tribunal decision sets out faithfully the claims made by the applicants in the protection visa application (court book, pages 105 to 107). I reject the contention that the Tribunal failed to consider those claims in whole or part. The Tribunal also took into account the response to the s.424A invitation. There was, in my view, no element or integer of the applicant's claims that was overlooked. The Tribunal engaged in an active, intellectual process in dealing with the claims. The Tribunal decision turned upon the Tribunal's adverse credibility findings. Those findings were open to the Tribunal on the material before it.

11. The principal applicant complains that his migration agent did not explain adequately to him the contents of the documents he signed, but assuming that was so, it does not support a contention that there was some fraud on the Tribunal. The principal applicant's oral statements followed the broad outline of his written claims, although there were some inconsistencies in detail. More importantly, however, the Tribunal was concerned about inconsistencies between what the principal applicant had told the Department at the oral interview conducted before it and what he told the Tribunal at the hearing before the Tribunal. The applicants cannot blame those inconsistencies on their migration agent. Further, the Tribunal considered some of the assertions by the principal applicant to be implausible.

12. I do not see in the application or in the available material any arguable case of jurisdictional error by the Tribunal.

13. In addition to the above reasons, I substantially agree with and adopt for the purposes of this judgment, with minor amendments, paragraphs 4 through to 11.3 of the Minister's written submissions:

    The application filed on 26 May 2008 sets out seven grounds of application. With the exception of the seventh ground, none of the grounds are particularised.

    First ground: failure to act judicially and accord procedural fairness

    The applicants have not particularised any specific failure to act judicially or accord procedural fairness. In any event, the first respondent submits that the Tribunal is not obliged to act judicially, rather, it exercises an inquisitorial function. Its obligations to accord procedural fairness in terms of the fair hearing rule are limited to compliance with the requirements of Division 4 of Part 7 of the Migration Act; s.422B. There is nothing to suggest that these requirements were not met. Accordingly, this ground does not raise an arguable case for the relief claimed.

    Second ground: failure to investigate applicant's genuine claims

    The applicants have not particularised any claims which were not investigated. In any event, the Tribunal is under no duty to make its own inquiries. It is for the applicants to satisfy the Tribunal that they meet the criteria for the grant of a visa; Minister for Immigration v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J. This ground does not raise an arguable case for the relief claimed.

    Third and fourth grounds and particulars: actions of migration agent

    Broadly speaking, the third and fourth grounds assert that a migration agent is responsible for the inconsistencies identified by the Tribunal. A number of the particulars to the seventh ground of review also make claims about the conduct of a migration agent. The only basis upon which conduct of a migration agent could lead to jurisdictional error on the part of the Tribunal is if there was a fraud on the Tribunal; SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64. Such allegations must be clearly made, and proven with certainty; SZITB v Minister for Immigration and Citizenship [2007] FCA 1954, Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 361-3. There was no evidence before the Court to support the claims in the application. Insofar as there is material available from the Tribunal file that goes to these issues, it would appear to be inconsistent with some of the more specific matters alleged (see ground 4 and particular 6, and the statutory declaration of the first applicant reproduced at pages 93-95 of the book of relevant documents). Nor does the application clearly allege fraud on the part of the migration agent. Accordingly, the first respondent submits that these grounds do not raise an arguable case for the relief claimed.

    Fifth ground: failure to apply correct test in assessing fear of persecution on religious grounds

    There is no evidence to suggest that either applicant advanced any claim on the basis of their religion. Accordingly, this ground does not raise an arguable case for the relief claimed.

    Sixth ground: failure to take account of relevant considerations or integers of claim

    The applicants have not identified any relevant considerations or any integers of their claims that were not taken into account. Accordingly, this ground does not raise an arguable case for the relief claimed.

    Seventh ground: failure to comply with s.424A

    The applicants have not provided particulars of the asserted non-compliance.

    The particulars to the seventh ground, insofar as they can be understood, do not relate to any failure by the Tribunal to comply with s.424A.

    The first particular appears to take issue with the Tribunal’s use of independent country information.  The Tribunal did not rely on any independent country information.  Nor did it refer to any in its written reasons.  In any event, the selection of and weight accorded to independent country information is a matter for the Tribunal; NAHI v Minister for Immigration [2004] FCAFC 10.

    The second particular asserts that the Tribunal failed to identify the applicant's fear of persecution on the grounds of political opinion.  The Tribunal characterised and assessed the claims on that basis, as can be seen from the second paragraph of its "Findings and Reasons" (see page 114 of the book of relevant documents).

    The remainder of the particulars set out allegations of misconduct on the part of the applicants' migration agent.  There is no evidence to support such allegations, even if the allegations could be said to amount to a fraud on the Tribunal.

14. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

15. As to costs, the Minister seeks an order in accordance with the Court scale in the sum of $2,500. The first applicant indicated his intention to seek leave to appeal to the Federal Court but he did not make any submissions on costs. The second applicant did not wish to be heard on costs. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  20 August 2008