SZMJT v Minister for Immigration
[2008] FMCA 1465
•24 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMJT v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1465 |
| 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 complied with s.424A 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(1); 424AA; 424AA(b); 474; pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 |
| Applicant: | SZMJT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1615 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 8 October 2008 |
| Date of last submission: | 8 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2008 |
REPRESENTATION
| Applicant appearing on her own behalf |
| Counsel for the Respondent: | Ms S. Sirtes |
| Solicitors for the Respondent: | Mr P. Snell, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1615 of 2008
| SZMJT |
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 15 May 2008 and handed down on 27 May 2008.
The applicant claims to be from the People’s Republic of China (“China”) and is married to a man who previously operated a petrol station in China (“the Applicant”).
The Applicant arrived in Australia on 9 August 2007 having departed illegally from Fuzhou on a passport issued in a false name and a visitor’s visa issued on 12 July 2007.
On 21 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 18 December 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 17 January 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 15 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 24 June 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 she feared persecution by the Chinese authorities including the Public Security Bureau (“the PSB”). The Applicant claimed that her business was closed down and her husband was arrested and detained for protesting against unfair treatment by corrupt Chinese officials. She claimed she “had to pay RMB 200,000 yuan” as a fine to secure his release and pay medical expenses for his injuries resulting from torture by “police”.
The Delegate’s decision
On 18 December 2007, 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 found the Applicant’s claims to be unsubstantiated and found there was no evidence that she was of significant adverse interest to the Chinese authorities at the time she departed from China. The Delegate found the Applicant’s claim to fear persecution for the Convention based reason of imputed political opinion not too be well-founded.
The Tribunal’s review and decision
On 17 January 2008, the Applicant lodged with the Tribunal an application for review of the Delegate’s decision. The Applicant provided no further material other than a copy of the passport used by her to enter Australia in support of the review application. On 15 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 5 February 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 12 March 2008 to give oral evidence and present arguments. The Applicant and her son attended that hearing and gave evidence.
On 12 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 discussed with the Applicant: the non-inclusion of her son in her application; her son’s student visa application; her and her son’s travel to Australia; her and her husband’s employment in China; her and her husband’s residential history; the events she claimed resulted in her husband’s arrest and detention; events subsequent to her husband’s arrest; her husband’s injuries; and actions taken by her in pursuit of justice in China.
The Tribunal noted in its decision record that the Applicant made further claims which it discussed with her including that: she was beaten twice, once in mid May 2007 and once on or around 24 June 2007, as a result of complaints about Chinese authorities; one Chinese official was suspended for a month following a complaint by her to a “provincial level”; she had an airline ticket purchased for her and her visa organised by a Mr H-; “someone phoned her” on 8 August 2007 and told her to leave and go to the airport the following day; and, she arrived in Australia on 10 August and one day later her husband was arrested and “they said they would try and arrest her”.
The Tribunal noted in its decision record that it discussed with the Applicant her credibility and issues it was concerning about arising from her 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 found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“6. The Tribunal:
(a)Assessed the applicant’s claims on the basis that it accepted her Chinese nationality (CB 78.7).
(b)Found the applicant not to be a credible witness (CB 80.5 and following).
(c)Noted that the applicant’s claims flowed from a central claim that her husband had been managing a petrol station in Fujian province and found that the claims pertaining to incidents ob 8 March 2007 were fabricated. (CB 80.5 to 80.6).
(d)Rejected the claims that the applicant and her husband had been involved in the management of the petrol station and that the husband did not currently manage a petrol station (CB 80.6 to 81.6).
(e)Found the evidence given by the applicant’s son to be false evidence and inconsistent with the evidence of the applicant (CB 81.7).
(f)Found that the evidence considered cumulatively demonstrated the applicant was not a credible witness, the son was not a credible witness and the Tribunal rejected all the applicant’s claims regarding her reasons for departing China (CB 82.1).
(g)Did not consider the applicant to have a well-founded fear of persecution for a Convention reason in China, at the time or in the reasonably foreseeable future (CB 82.2)”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. The Applicant has participated in the NSW RRT Legal Advice Scheme.
The Applicant confirmed that she relied on the grounds contained in her application for judicial review filed on 24 June 2008. The Court gave the Applicant leave to read a document that she said was in the nature of submissions and written in support of her application by an unnamed friend. The “submissions” appeared to be a mixture of submissions and a restatement of the grounds of her application. The Applicant declined to make any further submission in support of her application. She confirmed she had filed no evidence or other submissions in support of her application.
The grounds of the application are expressed to be as follows:
“1. The Tribunal failed to provide me a fair chance so that I could not present my argument or make my comment on the information considered by the Tribunal as a reason or part of reason in relation to its decision on my review application. The Tribunal failed to comply with its obligations under s.424AA(b)(iii) of the Act.
Particulars
According to the Tribunal’s decision, it has stated that:
Nonetheless, at the hearing the Tribunal set out information and asked for the applicant’s comments or response, and she gave comments. When the “Tribunal asked whether she required further time to respond, she queried whether she could apply to the government for protection. The Tribunal indicated that is what the Tribunal was doing and she then gave no other comments. The tribunal concluded she did not seek additional time to comment on or respond to the information.
It is true that the Tribunal did ask me whether I required further time to respond the information set out by it at the Tribunal’s hearing; but the Tribunal failed to ensure me to understand that it was my common right under s.424AA of the Act; and as a result, I was confused at the beginning by queried whether I could apply to the government for protection; and then I gave no other comments.
Subject to s.424AA b(iii) of the Act, I believed that the Tribunal must clearly advise me that I may seek additional time to comment on or respond to the information.
2. The Tribunal failed to genuinely comply with its obligations under s.424AA(b) and s.424A(1) of the Act.
Particulars
In the Tribunal’s decision, the Tribunal has considered information obtained from my [the Applicant’s son] student visa application as reason or part of reason. These included:
- The student visa application was signed on 25 September 2006
- My husband [the Applicant’s husband] registration card on 17 February 2004. This showed my husband’s occupation was ‘photographer’ and his place of employment was ‘Feihong Photoshop, Gulou District, Fuzhou’.
- Details concerning a ‘student loan’ entered into by [the Applicant’s husband]. His occupation was stated to be ‘cameraman’ on 83,000rmb annually. He was employed at ‘Fuzhou Gulou District Feihong Photo Studio’ and a business address was provided. The loan from the Bank of China, Fuqing Branch was for 600,000rmb and the period of the loan from 15 September 2006 for 3 years.
- The instructions for a student visa application showed that in China there were only 6 acceptable financial institutions for Student visa assessment purposes and one of those was the Bank of China.
In the Tribunal’s decision, the Tribunal has also considered information obtained from my visitor visa application as reason or part of reason. These included:
- My visitor visa application was signed on 2 July 2007. I wished to visit my son in Australia.
- A statement dated 18 June 2007 by my husband [the Applicant’s husband]. He indicated that I wished to visit to visit our son. He discussed his job which he said had been at Fuzhou City Gulou Feihong Photo Studio from 1997. He provided an ‘Income certificate’ to show this employment. He had more than 80,000rmb in a fixed deposit at Bank of China.
- A Bank of China certificate of deposit dated 22 may 2007 showed my husband had a fixed deposit there of 80,000rmh until 30 June 2007.
- The family’s Household register issued on 22 May 2006. This showed my husband [the Applicant’s husband’s] occupation was ‘farmer’ and his place of employment was Qiyun village. The applicant’s occupation was also shown as ‘farmer’.
Subject to s.424AA(b) of the Act, 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.
However, although the Tribunal might set out the information, it has never 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 orally invite me to comment on or respond to the information; but the Tribunal failed to ensure me to understand that it was my common right under s.4224AA of the Act to seek additional time to comment on or respond to the information.
Subject to s.424A(1) of the Act, while the Tribunal provides the applicant particulars of the information, the Tribunal must
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequence of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
However, in my case, the Tribunal failed to genuinely ensure, as far as is reasonably practicable, that I understand why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and the Tribunal failed to genuinely invite me to comment on or respond to it.
3. The Tribunal failed to consider my evidences impartially and properly.
Particulars
The Tribunal rejected my major claims almost only based on its prejudice that those documents including the applications of my son and mine must be genuine ones and my evidences in the protection visa application must be fabricated.
As a matter of fact, those applications were actually organised by Mr [H] and I really had no ideas about what documents Mr [H] had submitted on our behalves.”
I accept the distillation by counsel for the First Respondent of the Applicant’s grounds as follows:
Ground 1“The Tribunal failed to comply with its obligations pursuant to sub-section 424AA(b)(iii) because the applicant did not properly understand that she could apply for further time to comment on information”.
Ground 2“The Tribunal failed to comply with sections 424AA(b) and 424A(1) of the Act by
(i)failing to put her information from her son’s student visa application; and
(ii)failing to put her information from her visitor visa application”.
Ground 3“The Tribunal failed to consider the applicant’s evidence “impartially or properly” (which the first respondent takes to be an allegation of bias, rather than an allegation of constructive failure on the part of the tribunal).”
Grounds 1 and 2
The Applicant alleges that the information contained in her son’s student visa application and the Applicant’s own visitor visa application should have been explained to her. The First Respondent concedes that the Applicant did not provide that information to the Tribunal for the purposes of her review.
The First Respondent read the affidavit of Simone Louise Forsythe sworn 30 September 2008 which annexed a transcript of the Tribunal hearing. A fair reading of the Tribunal’s reasons makes clear that the reference by the Tribunal to the Applicant’s evidence was accurate.
A fair reading of the Tribunal’s reasons and of the transcript make clear that the Tribunal put to the Applicant the information in her son’s student visa and in her visitor visa for her comment. The transcript makes clear that the Tribunal put to the Applicant the particular information contained in the son’s student visa application which caused it concern, namely, that the visa application stated that the Applicant’s husband was a photographer and his occupation was stated to be a cameraman. The Tribunal noted that the student visa application was signed on 25 September 2006 and gave an address different to the address claimed by the Applicant to be her husband’s place of work at the petrol station. In her written claims and oral evidence, the Applicant stated that her husband had worked at a petrol station from January 2005 during which he came into contact with corrupt officials who refused to pay for their petrol. The Applicant stated that in March 2007, following an argument with two corrupt officials, her husband was arrested by the PSB and detained, during which time the Applicant alleged he was tortured.
The transcript discloses that the Tribunal put to the Applicant clearly that the information in her son’s student visa that her husband worked in a camera shop or photo shop suggested to the Tribunal that her whole story had been “fabricated”. The Tribunal went on to ask if she had any comments or wished to respond.
The Tribunal also put to the Applicant that she had said at the commencement of the hearing that her son’s student visa application was true and correct and that all of the documents provided with it were true and correct. The Tribunal put to the Applicant that if that information was accurate then the claims she had made in support of her protection visa application caused the Tribunal to doubt her credibility.
The Tribunal also put to the Applicant the information contained in her visitor’s visa application that caused it concern and noted the Applicant’s response that her application had been completed by Mr H-. In particular, the Tribunal put to the Applicant that she had signed her visitor visa application, having first suggested that Mr H- had signed it or had simply presented her with the completed visa documents and gave her nothing to sign. The Tribunal noted that the Applicant agreed that it was her signature on the visitor’s visa application.
The transcript discloses that at the hearing the Tribunal gave the Applicant the original of both documents in Chinese with English translations.
The Tribunal put to the Applicant that her visitor’s visa application signed by her on 2 July contradicted her claims in support of her protection visa application and this may lead the Tribunal to find that her claims were fabricated.
The Tribunal then took evidence from the Applicant’s son which again contradicted the Applicant’s evidence.
At the conclusion of the evidence the Tribunal asked the Applicant if she wished to comment or respond to anything that had been covered at the hearing and whether she needed further time. In response the Applicant stated “Well I need further time because on March the 8th when my petrol station was suspended I didn’t tell my Son because I was afraid that this would affect his studies and (inaudible) more pressure.” The Tribunal member then said “…Alright, you just said you needed further time and then spoke about the events in March. What did you mean you need further time?” The Applicant responded “I just need protection. I have finished my story and you have thought about it but I just want to seek protection, I cannot go back to China.” The Tribunal then said to the Applicant that it did not seem she was actually asking for further time to respond and accordingly the Tribunal would consider her evidence. Just before concluding the hearing, the Tribunal said to the Applicant “So, you are not seeking further time to respond therefore I will proceed to make a decision...” The Applicant answered “I just want to seek protection and all these things otherwise I cannot protect my Son and I have no funds to continue his support his study. I cannot afford to go back to China. I hope the government can accept me so I can stay here.”
The requirements of s.424AA(b) are as follows:
“ If an applicant is appearing before the Tribunal because of an invitation under section 425:
(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.”
A fair reading of the Tribunal’s reasons and the transcript of the hearing makes clear that the Tribunal complied with those requirements.
The Tribunal gave careful consideration as to whether or not it should adjourn the hearing and noted specifically in its reasons that “At the conclusion of the hearing the Tribunal considered whether to provide additional time for the applicant to comment on or respond to the information set out by the Tribunal at the hearing.” The Tribunal noted that it put to the Applicant the relevant information and invited her comments and responses. The Tribunal noted the comments and responses given by the Applicant. The Tribunal found that the Applicant understood the questions that it asked the Applicant and that she was given opportunities during the hearing to tell her story without interruption. The Tribunal noted that she was given the original documents in Chinese for her consideration and again invited to comment upon them. The Tribunal concluded that in all the circumstances the Applicant did not reasonably need additional time to comment on or respond to the information and that it was reasonable for the Tribunal to proceed with its review.
As disclosed by the transcript, as referred to above, it is apparent that the Tribunal: ensured as far as reasonably practicable that the Applicant understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision under review; orally invited the Applicant to comment on and respond to the information; advised the Applicant that she may seek additional time to comment or respond on the information; and, considered that the Applicant did not require any such additional time to comment or respond on the information.
A fair reading of the Tribunal’s reasons makes clear that the Tribunal identified with particularity the Applicant’s written claims and oral evidence; put to the Applicant matters of concern that it had about her claims and evidence; noted her responses and explanations; put to her the information that may be part of the reason for affirming its decision in accordance with s.424AA of the Act; made findings based on the Applicant’s evidence and the information before it and for which it provided reasons.
The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Those findings are a matter “par excellence” for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Having put to the Applicant information in accordance with s.424AA of the Act, there was no other information that enlivened the obligations of s.424A(1) of the Act.
Grounds 1 and 2 are otherwise more in the nature of a disagreement with the findings and conclusions made by the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1). As referred to above, those findings and conclusions were open to the Tribunal on the evidence and material before it and for which it provided reasons.
Accordingly grounds 1 and 2 are not made out.
Ground 3
Ground 3 appears to be an allegation of bias. The particulars in support of the allegation are the Tribunal’s adverse findings in respect of the Applicant’s claims, in particular, its finding that her evidence was in support of her protection visa application was fabricated.
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]).
Bias on the part of the Tribunal will rarely be apparent “by reference only to the reasons for the decisions themselves” (SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ citing SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 per Von Doussa at [36] – [38]).
Further, a fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than 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 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
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 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 which it provided reasons. 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-five (55) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 23 October 2008
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