SZMJW v Minister for Immigration
[2008] FMCA 1528
•27 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMJW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1528 |
| MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal – citizen of China claiming fear of persecution for reason of political opinion – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 474 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24 relied on Re Ruddock ex parte applicant S.154 of 2002 (2003) 201 ALR 437 referred to |
| Applicant: | SZMJW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1524 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 October 2008 |
| Date of Last Submission: | 27 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2008 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The applicant is to pay the First Respondent’s costs fixed in the sum of $3800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1524 of 2008
| SZMJW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Application
The application before the Court is an application for review of a decision of the Refugee Review Tribunal. The applicant is a citizen of the People's Republic of China. She asks the Court to issue three writs. First, she asks for a writ of certiorari to quash the decision of the Refugee Review Tribunal. Second, she asks for a writ of mandamus to issue, requiring the Tribunal to hear and determine her application for a visa according to law. Third, she asks for a writ of prohibition to issue against the first respondent, the Minister for Immigration & Citizenship. That writ of prohibition would prevent any action being taken in reliance upon the Tribunal decision.
It has been explained to the applicant, that in order to make the orders that she seeks, the Court would need to be satisfied that the Tribunal decision is affected by jurisdictional error.
In her amended application which was filed on 5 August 2008, the applicant sets out two grounds of review:
1. The Tribunal failed to refer to proper independent information for the consideration of my application. The decision was not made on a rational and logical foundation.
2. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with s.424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.
The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision and was required to explain why the information is relevant and provide the applicant with an opportunity to comment upon it.
The above-mentioned had to be provided in writing. The applicant seeks to rely on the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24.
The background to this matter is that the applicant arrived in Australia on 9 September 2007. On 23 October in that year, she applied for a protection (Class XA) visa. The applicant claimed a fear of persecution on the basis of political opinion, and provided with her application, a statutory declaration setting out her case. She referred to a dispute between local farmers and corrupt officials over the resumption of land by the government, without being given proper compensation. She claimed to have taken part in a demonstration on 21 June 2007, which was broken up by the police. She said:
I was completely dumbfounded by seeing that the police beat innocent people with police sticks[1].
[1] See Court Book at paragraph 8, page 31
The applicant went on to complain that from 21 June to 6 July 2007, she was detained for more than two weeks and subjected to persecution at the detention centre. She was interrogated by the police many times. Every time she was interrogated, she was mistreated by the police physically and mentally. She was beaten by some criminals who had been detained in the same cell. Finally, with bribery to the police and to some officials, she was released. She was warned, however, not to get involved in any anti-government movement again[2].
[2] See Court Book at para 9, page 31
A delegate of the Minister for Immigration & Citizenship refused her application for a visa on 10 January 2008. In the delegate's decision record, the delegate was not satisfied that the applicant had substantiated her claim of being arrested and detained in relation to the protest, and was not satisfied that the applicant was involved in the distribution of anti-government material after she was granted a visa to Australia. The delegate accepted as plausible that the applicant's land may have been acquired by the government, and that she might not have been awarded compensation. However, the delegate was not satisfied that the applicant had a well-founded fear of persecution on account of her political opinion or any other convention reason, and refused the application for a visa.
The applicant with the assistance of her migration agent applied to the Refugee Review Tribunal on 31 January 2008 for review of that decision. The application for review indicated that the applicant needed an interpreter in the Chinese language and of Mandarin dialect[3].
[3] See Court Book at page 51
The Tribunal wrote to the applicant care of the migration agent, on 18 February 2008. The Tribunal invited the applicant to attend a hearing to take place on 11 April 2008. The letter noted that an interpreter would be provided in the Mandarin language. The applicant attended the hearing on 11 April 2008. The Tribunal had provided a Mandarin interpreter. However, as the Tribunal noted in the decision record, at page 81 of the Court Book, the applicant told the Tribunal that in fact she could not communicate well through the Mandarin speaking interpreter, and had told her migration agent that she would need a Fuqing speaking interpreter. The Tribunal said:
As I was not satisfied that the hearing could properly be conducted under these circumstances, it was adjourned to 1 May when a Fuqing speaking interpreter was available.
The Tribunal wrote to the applicant care of the migration agent, advising that the hearing would take place on 1 May 2008. The applicant completed a response to hearing invitation, no doubt with the assistance of her migration agent, and indicated that she would attend the hearing and would require an interpreter in the Fuqing dialect. The applicant attended the hearing on 1 May 2008, and gave evidence with the assistance of an interpreter in the Fuqing dialect. She brought her Chinese passport with her to the hearing, and the Tribunal took a copy of it. The applicant gave evidence at the hearing, and the Tribunal signed its decision on 8 May 2008. The Tribunal handed down its decision on 20 May 2008. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
In the Tribunal decision record, the Tribunal set out the applicant's claims and evidence, and noted that it had heard evidence from the applicant and also from her husband. The Tribunal considered the evidence of both husband and wife, and set that out in the hearing record. In its findings and reasons, the Tribunal was satisfied that the applicant was a national of the People's Republic of China. The Tribunal noted the applicant's claim that corrupt officials confiscated village land without proper compensation, and that a protest about this had been broken up by the police. The Tribunal noted that some information that had been provided to the Department for a visa application for the applicant's son was not true. The Tribunal noted that the applicant:
Told the Tribunal that none of the information about her or her husband's employment given in support of the application for her son's student visa in 2006 was true. The Tribunal is of the view that even if it gives her the benefit of the doubt and accepts that she was not a store manager but a farmer, her willingness to provide untrue information about her employment history on a previous occasion, must cast doubt on her reliability as a witness and thus on the very different history given by her in relation to the protection visa application[4].
[4] See Court Book at page 87
The Tribunal was not satisfied that the applicant had been truthful with regard to her claim that her land was the subject of a takeover by officials in 2006. The Tribunal was not satisfied that any of the applicant's land was targeted by local authorities. The Tribunal was not satisfied that the applicant had been truthful about her involvement in a protest in the Haikou area, relating to the confiscation of land. The Tribunal did not accept that the applicant was involved in a protest or was detained as a result or was questioned by police in relation to that protest. The Tribunal did not consider plausible, the applicant's claim that she was involved in any previous protest activities and did not consider plausible the claim that she distributed any leaflets or that villagers had told police that the applicant was involved in any related activities. The Tribunal was satisfied that at the time she left China, the applicant was of no interest to the Chinese authorities and was satisfied there had been no subsequent developments that might give rise to any adverse interest.
The applicant had not claimed to fear persecution in China for any convention reason other than a political opinion imputed to her, and the Tribunal was satisfied that no other convention reason was apparent from the evidence before it. The Tribunal found that the applicant did not have a well-founded fear of convention related persecution in China, and as therefore not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention. The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant applied to this Court for judicial review by means of an application and an affidavit of support filed on 13 June 2008. The application was listed for final hearing on 2 October 2008, but could not be heard that day due to the shortage of interpreters. The applicant was adjourned until today, and the applicant has participated in the hearing with the assistance of an interpreter in the Fuqing dialect.
The applicant has not filed any written outline of submissions, but she told the Court that the Tribunal did not give her a solid reason for the rejection of her application. She claimed that the Tribunal did not write to her with the reasons for rejection so that she could reply. She said that the Tribunal just rejected her application and no proper reasons were given. She claims that she was promised a letter by the Tribunal, setting out reasons, but she did not receive such a letter. She said that she was just rejected straightaway.
For the Minister, it is submitted that there is no basis for the applicant's claim that the Tribunal failed to refer to proper independent information, or that the decision was not made on a rational and logical foundation. The Tribunal decision record does not indicate that the applicant referred to any independent information, although she was given an opportunity to do so. The Tribunal did have regard to a report from the United States State Department on human rights practices in China, and the Tribunal referred to that document in its findings and reasons at page 87 of the Court Book. The Minister submits that there is no basis for a claim that there was some legal error in the Tribunal decision, by reason of irrationality or illogicality. Want of logic does not constitute an error of law.
As to the ground that the Tribunal committed a breach of s.424A of the Migration Act, it was submitted by Ms Johnson who appeared for the Minister, that the Tribunal was not obliged to provide advance notice to an applicant of the basis upon which it might affirm the decision under review. In any event, there was no information required to be put to the applicant for comment under s.424A (1) of the Act. I am referred to the observations of the High Court in SZBYR v Minister for Immigration & Citizenship[5]. Information for the purpose of s.424A of the Act does not include information which does not contain in its terms, a rejection, denial or undermining of the review applicant's claims to be a refugee[6]. Again, the Tribunal's observations or thought processes, or its reasoning in relation to inconsistent information does not amount to information for the purpose of s.424A of the Act.
[5] (2007) 235 ALR 609
[6] See SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [17]
The Tribunal had regard to details in the son's student visa application, and noted that that information on its face did not undermine the applicant's claims to be someone who is owed protection obligations by Australia. It was, however, inconsistent with other information that the applicant had given in support of her protection visa application. Again, Ms Johnson put to the Court that the applicant's husband's evidence to the Tribunal did not in itself contain a rejection, undermining or denial of the applicant's claims to be a refugee. It was inconsistent with the applicant's own evidence in relation to the circumstances leading to the confiscation of their land. It is not information for the purposes of subsection 424A (1). It is not sufficient that the information when considered against other information, may cast doubt on the review applicant's credibility because of the perceptions of inconsistencies[7].
[7] See SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at para 17-18
Particulars of independent country information that the Tribunal relied on were not specifically about the applicant, and fell within sub‑s.424A (3) (a). It was not required to be disclosed under s.424A (1). In any event, as was submitted, the Tribunal put information to the applicant at the hearing orally, and the Tribunal advised the applicant that the Tribunal had information that could lead it to affirm the decision and offered her the opportunity to respond orally or in writing. The applicant chose to respond orally. It is submitted there is no support for a claim of a breach of s.424A.
It was also submitted that there was no evidence that the applicant had been promised any letter from the Tribunal, and the Tribunal had no obligation to provide its reasons in advance of the decision.
In considering the applicant's claims, I note that ground 1 claims the Tribunal failed to refer to proper independent information for the consideration of the application. It is well established that there is no obligation on the Tribunal to refer to any independent country information or obtain information to support the applicant's case (See Minister for Immigration & Multicultural & Indigenous Affairs v SGLB[8] (2004) at [43] and also SZATG v Minister for Immigration & Multicultural & Indigenous Affairs[9] at [22]-[26]. There is no obligation on the Tribunal to make the applicant's case for her (See Prasad v Minister for Immigration & Ethnic Affairs[10] at 169-170). It was for the applicant to put forward whatever evidence she wished the Tribunal to take into account (See Re Ruddock; ex parte applicant S.154 of 2002[11]).
[8] (2004) 78 ALJR 992
[9] (2004) FCA 1595
[10] (1985) 6 FCR 155
[11] (2003) 201 ALR 437
As to the claim that the decision was not made on a rational or logical foundation, there is nothing from the Tribunal decision record which indicates a want of logic or a want of rationality. In any event, I am reminded by Ms Johnson that six differently constituted Benches of the Full Court of the Federal Court have ruled that want of logic does not constitute an error of law. (See NACB v Minister for Immigration & Multicultural & Indigenous Affairs[12] at [30], W404/01A v Minister for Immigration & Multicultural & Indigenous Affairs[13] at [35]; NATC v Minister for Immigration & Multicultural & Indigenous Affairs[14] at [25]; VWST v Minister for Immigration & Multicultural & Indigenous Affairs[15] at [16]; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs[16] at [31]-[32]; and WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs[17] at [22]).
[12] [2003] FCAFC 235
[13] [2003] FCAFC 255
[14] [2004] FCAFC 52
[15] [2004] FCAFC 286
[16] [2004] FCAFC 330
[17] [2005] FCAFC 79
The applicant's ground 1 fails.
At the same time, I am not of a view that the applicant has shown a breach of s.424A of the Migration Act.
The information relied on by the Tribunal came from the applicant, or from independent country information. There was no information required to be put to the applicant for comment, and I agree with the submission that information does not include information which does not contain in its terms a rejection, denial or undermining of the applicant's claims to be a refugee. It is well-established that the Tribunal's thought processes or reasoning in relation to inconsistent information does not amount to information for the purpose of s.424A of the Act.
In making its credibility finding about the applicant and her willingness to provide untrue information about her employment history on a previous occasion[18], the Tribunal was relying on the applicant's own admissions to the Tribunal at the hearing. The evidence of the applicant's husband did not contain any rejection or undermining or denial of the applicant's claims to be a refugee, but it was inconsistent with the applicant's evidence. It is well-established that independent country information is information not specifically about the applicant and falls within the exception of subsection 424A (3) (a).
[18] See Court Book at page 87
I note also that, at the Tribunal hearing, the applicant was given information by the Tribunal that could lead it to affirm the decision under review, and was given the option of responding orally or in writing[19]. The Tribunal at page 84 sets out that information, and noted that the applicant chose to respond orally, saying that she was unable to write. The Tribunal in my view has sought to comply with s.424AA of the Migration Act, and if there was any obligation under s.424A(1), the Tribunal having complied with s.424AA, can rely on s.424A(2)(a) of the Act to relieve it of its obligation to put information to the applicant in writing. In my view there was no obligation to do so in the first place.
[19] See Court Book at page 83
The applicant's second ground fails.
I note that the applicant is not legally represented, and my own perusal of the Tribunal decision record and other documents does not indicate any arguable case for jurisdictional error. There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by subsection 474 (2) of the Migration Act. Section 474 (1) provides that privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari, mandamus or prohibition.
It follows that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. It is an appropriate matter for a costs order. The amount of $3800 is an appropriate figure.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 11 November 2008
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