SZMMP v Minister for Immigration
[2008] FMCA 1509
•7 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMMP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1509 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no obligation to notify information falling within s.424A(3) of the Migration Act 1958 if oral notification of information is made under s.424AA of that Act. |
| Migration Act 1958, ss.422B, 424A, 424AA, 441A, 474 Migration Regulations 1994, r.5.02 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 Kioa v West (1985) 159 CLR 550 SZLTC & Ors v Minister for Immigration & Citizenship & Anor [2007] FMCA 384 |
| Applicant: | SZMMP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1739 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 24 October 2008 |
| Date of Last Submission: | 24 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Crossland |
| Solicitors for the Applicant: | Bruce Bian Solicitors |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1739 of 2008
| SZMMP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where he claims to fear persecution because of his association with the China Freedom and Democracy Party. The applicant arrived in Australia on 12 December 2007.
The applicant claims to fear persecution in China by reason of his political opinion.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 12 February 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 14 of the Tribunal’s decision (Court Book (“CB”) pages 90 – 100). Relevantly, they are in summary:
a)from March 1994 he worked for Archeng Water Company, the only company to supply water in the Archeng area;
b)in October 2006 he was transferred to the inspection team to inspect water meter systems and to verify whether the users had paid the proper water rates;
c)in February 2007 he was directed to inspect an area for another inspector. During this inspection he found a restaurant that had not complied with the standards;
d)when he reported this matter to the leader of the inspection team and leaders of the Archeng Water Company they did nothing about it and when he questioned them he was warned not to bother too much. He later said he had an argument with his supervisor about this;
e)he later discovered from a colleague that the restaurant was run by the family of Mr Yun Fei Wang, the President of the Political and Legal Committee, the top government agency in the Archeng District. A colleague advised him not to get involved or he would get himself in big trouble;
f)in April 2007 he wrote anonymous letters to the Harbin Discipline Inspection Committee, Harbin City Anti-Corruption Bureau, Harbin People’s Procuratorate and Harbin People’s Court to investigate the restaurant and suspected corrupt officials including Mr Wang and leaders of Archeng Water Company;
g)an investigation team was sent but the applicant alleged that their real objective seemed to be to find out who had sent the letters. He was questioned three times by the investigation group, who concluded that Yun Fei Wang and his family and Archeng Water Company were “clean”;
h)on 25 May 2007 the applicant was taken from his home to a detention centre on suspicion of writing the anonymous letters to damage the reputation of Yun Fei Wang. He was charged by police from the 610 office and the Archeng PSB;
i)he was treated as a Falun Gong practitioner, being regarded as a dangerous anti-government person. He was tortured, mistreated and humiliated every day in the detention centre, however, he refused to confess;
j)after six weeks of detention he was released after his wife sold their house to obtain the money to bribe Yun Fei Wang and other corrupt officials including the police. He was dismissed by the Archeng Water Company;
k)subsequently, while working as a temporary construction labourer he became acquainted with Mr Song Tao Mao who was a member of the China Freedom and Democracy Party (“Party”), an underground political organisation. He joined the Party in September 2007 and secretly distributed promotional material and helped recruit new members;
l)there were five members in his action group of the Party in Archeng. The applicant knew there was a great risk to him in being involved with the Party so he asked a friend to secretly arrange his trip overseas to be ready for any threat to his safety;
m)on 1 December 2007 two of the group members were arrested by the PSB and he immediately asked his friend to arrange for him to leave China as soon as possible, leaving on 11 December 2007. He later said that he had applied for his visa with the help of his friend in October 2007, but did not know on what sort of visa it was that he travelled to Australia; and
n)since leaving China, the applicant learned that Mr Mao and the other group member had been arrested. His political activities have come to the attention of the Chinese authorities and his wife has been questioned by the police five times, his house searched and he will be subjected to persecution if he returns to China.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant’s material claims lacked credibility and could not be accepted, noting that:
i)it was highly implausible that the applicant would have been given a supervisor position after he reported an irregularity to his supervisor who told him to do nothing about it and they had an argument as a result;
ii)the applicant initially gave evidence at the hearing that he was arrested by the chief of police and people from the 610 office but later said that he was persecuted by the corruption interest group that was investigating his complaints. The Tribunal found that if he had been arrested and tortured as he claimed he would remember who his torturers were;
iii)the inconsistency in the applicant’s evidence as to how he obtained his Australian visa raised serious concerns about his credibility. He initially claimed that he applied for his Australian visa in October 2007, his friend helped him and asked him for his passport but later said that he gave his friend his passport in August 2007;
iv)the Tribunal found that when asked about the guidelines of the Party his answer was rambling and non-responsive. It further found it highly implausible that the applicant would not have known it was illegal to join the Party or that, having discovered that it was illegal, would have, without having a strong commitment to the ideals and goals of the Party, remained an active member and participated in dangerous and illegal activities after having been detained and tortured. That he was unable to demonstrate any understanding of the goals or guidelines of the Party raised serious concerns as to his credibility;
v)the applicant alleged that he decided to leave China when two members of the Party were arrested on 1 December 2007. This was inconsistent with his earlier evidence that he applied for his visa in October 2007 and it raised serious credibility concerns for the Tribunal;
vi)that the applicant was able to leave China legally with a passport issued in his own name without any difficulties indicated to the Tribunal that the applicant was not of adverse interest to the Chinese authorities; and
vii)the Tribunal did not accept that, since coming to Australia, the applicant made any inquires in relation to Chinese pro-democracy organisations; and
b)considering the applicant’s evidence as a whole the Tribunal found inconsistencies and contradictions which raised serious concerns as to his credibility. It found him not to be a witness of truth but rather one who was prepared to fabricate his claims to give himself the profile of a refugee. In view of these findings the Tribunal found that he did not have a well founded fear of persecution on the grounds of his political opinion or any other Convention reason should he return to China.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Tribunal committed jurisdictional error in that, in breach of s.424AA of the Migration Act, it did not ensure that the applicant understood why the country information put to him at the oral hearing was relevant to the review.
Breach of s.424AA of the Act
During the course of the hearing the Tribunal referred the applicant to independent country information, namely a 2006 Department of Foreign Affairs and Trade (“DFAT”) report on China’s entry and exit law. The relevant passage appears in the transcript of the hearing prepared on behalf of the applicant and annexed to the affidavit of his solicitor, Mr Bian, affirmed 11 September 2008. The following passage is particularly relevant:
Member:I want to talk to you about something that’s important. I’ll explain to you why it’s important first and then I’ll give you an opportunity to say anything you wish to say.
Something what you – some of the things you’ve told me is [sic] not consistent with the country information on China. This is important, because it could result in me forming the view that you are not a witness of truth. If I were to form that view, it could lead me to the conclusion that you are not a refugee. If I were to reach that conclusion, then I would have to affirm the decision made by the Department of Immigration. That would mean that you would not be entitled to a protection visa and your application would be unsuccessful.
Now, the Australia Department of Foreign Affairs and Trade, has – they have obtained information on China’s entry and exit laws. Those laws prevent certain people from leaving China. This includes people that the Chinese authorities consider to be harmful to state security or national interest.
So the information they’ve obtained is that people who’ve been detained by the Chinese authorities and who are suspected of being harmful to state security or to national interests may not be allowed to leave China.
Now we’ve got situation where, in 2007, you were arrested, you were detained for six weeks, you were ill-treated during that time and they suspected you of being the person who wrote the anonymous letters. So, if you are deemed to be somebody who are – who is harmful to national interests, then this – the information is that you would not have been allowed to leave China. You would have been on a black list.
Now, do you want to say anything in relation to that? You don’t have to and if you wish to say something you can do so or you can ask some more time to respond.
So this is the issue, that you left China on 10 or 11 December 2007, you were travelling with a passport issued in your own name and you had no problems leaving from the airport. Do you want to say anything about that? (at pp.32–33)
The applicant submits that the information put to him in this passage was notified to him pursuant to s.424AA of the Act which provides:
424AAInformation and invitation given orally by Tribunal while applicant appearing
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.
It is also relevant to refer to the terms of s.424A of the Act which provides:
424AInformation and invitation given in writing by Tribunal
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences 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.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(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.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
The applicant submits that in giving the particulars which it did the Tribunal did not meet the requirements of s.424AA(b)(i) in that it did not “as far as reasonably practicable” ensure that the applicant understood the relevance of the criteria for preventing departure from China under art.8V of the Chinese Law of the Control of Entry and Exit of Citizens.
The applicant submitted in particular that the Tribunal did not inform him that under that law:
a)a Chinese citizen would be prohibited from departing from China where that citizen “might cause danger to national security or cause extreme harm to national interests”;
b)a Chinese citizen would be prohibited from departing from China where the danger or harm he or she might cause is harm in question was harm that that person might cause “after departing the country” [sic]; and
c)the relevant judgment about possible harm to national security/interests was one that must be formed by the “relevant organs of the State Council”.
In making these submissions what the applicant has done is to particularise and expand on information which the Tribunal paraphrased or summarised in what it said to the applicant in the quotation at [9] above. In this case, it is necessary to identify what the relevant “information” was which had to be notified to the applicant, were there to have been any such obligation. In this respect, I conclude that although the Tribunal would not have been criticised for giving to the applicant the particular information which he now says should have been given to him, it was also permissible for the Tribunal to give a summary of the information potentially relevant to its decision. This is what it did when it said that people previously detained by Chinese authorities and suspected of being harmful to state security or Chinese national interests might not be allowed to leave China.
For these reasons I do not conclude, even if the Tribunal an obligation to give information to the applicant in relation to the DFAT report pursuant to s.424AA (b)(i), that it breached that obligation.
But in any event, the information in question was independent country information which the Tribunal had no obligation to notify to the applicant. While recognising the binding effect on this Court of the decision of Cowdroy J in SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270, the applicant reserves his position on this point for further argument on appeal. The applicant implicitly submits that the Court, were it not bound by his Honour’s decision in SZLXI’s case, should find that s.424A(3) does not apply to oral notifications given pursuant to s.424AA.
In SZLXI’s case, Cowdroy J said:
The Court observes that s.424AA of the Act does not contain an equivalent provision to s.424A(3). Section 424A(3) identifies material which is not ‘information’ for the purposes of the application of that section. However, as s.424AA is merely an alternative form of notification available to the Tribunal (see s.424A(2A)), the Court considers that the exclusions contained in s.424A(3) apply with equal force to s.424AA. Such inference is supported by the collective use of the term ‘information’ in s.424A(2A) of the Act (a subsection which applies to both ss.424A and 424AA), as such use implies uniformity of meaning. Section 424A(2A) provides:
(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.
Accordingly, the Court considers that what is not ‘information’ for the purposes of s.424A(1) of the Act is also not ‘information’ for the purposes of s.424AA. (at [27])
The particular relevance of his Honour’s decision for the purpose of this case is that it is to the effect that s.424A(3)(a) excludes independent country information, such as the DFAT report, from the Tribunal’s obligations under ss.424A(1) and 424AA.
In my view, the argument that the s.424A(3) exceptions do not apply when s.424AA is utilized must be rejected by this Court not merely because of the binding authority of SZLXI’s case but also because, with respect, Cowdroy J’s conclusion was correct. The common law natural justice hearing rule is codified by s.422B in those sections found in div.4 of Pt.7 of the Act. One aspect of procedural fairness at common law is the right of a person whose interests are likely to be affected by the exercise of power to be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kioa v West (1985) 159 CLR 550 at 628 per Brennan J.
In the context of the Tribunal and div.4 of Pt.7 of the Act, that right is found in s.424A.
Until the insertion into the Act of s.424AA in 2007, the only methods by which the Tribunal could give the particulars of the information referred to in s.424A(1) were those set out in s.424A(2), namely those found in s.441A, or reg.5.02 of the Migration Regulations 1994 which deals with service of documents on persons in immigration detention.
Section 441A specifies four methods of giving information to an applicant, all of which require it to be given in some variety of written form. In order to address what were considered to be practical difficulties associated with the necessity to give s.424A information only in writing, s.424AA was inserted with effect from 29 June 2007 to permit oral notification of information, with consequential amendments being made to s.424A.
In SZLTC & Ors v Minister for Immigration & Citizenship & Anor [2007] FMCA 384, Driver FM said:
It appears from the terms of s.424AA that if the Tribunal elects to embark upon a course of oral disclosure at a hearing, there are resultant obligations as set out in s.424AA(b)(i), (ii), (iii) and (iv). It also appears that if the Tribunal embarks upon a course of disclosure under s.424AA it does not enjoy the protections in s.424A(3). It would have been a simple matter for the Parliament to reproduce the exclusions in s.424A(3) in s.424AA. The fact that Parliament has chosen not to reproduce those exclusions leads me to think that they do not apply in relation to disclosure under s.424AA. (at [16])
However, and regardless of the binding effect on me of SZLXI’s case, with great respect to his Honour, I cannot agree. Properly understood, s.424AA does not create an obligation on the Tribunal to provide information in lieu of the common law procedural fairness obligation to do so, as does s.424A. The statutory creation of such an obligation is the role which s.424A performs. Section 424AA does no more than specify a method by which that obligation may be discharged. In this sense it should be seen as no more than a procedural provision similar to s.441A.
Such an interpretation is made clear by the Parliament’s use of the word “must” in s.424A and “may” in s.424AA. While s.424A provides that the Tribunal must give the information in question, s.424AA provides that such information may be given orally. The substantive requirement is found in s.424A, which must be viewed on the principal of the two provisions.
Such a conclusion is supported by the amendment of s.424A by the insertion of subs.(2A). Subsection (2) requires the information to be given in writing but subs.(2A) provides that this is not so if the procedure under s.424AA is adopted. That is to say, the obligation is created by s.424A but may be satisfied either by giving notice in writing under subs.(2) or orally under subs.(2A) and s.424AA.
As s.424AA is procedural only and does not affect the substantive obligation to provide information to an applicant which is found in s.424A(1), the exceptions to the operation of s.424A(1) found in s.424A(3) continue to apply to the obligation, even if information is provided orally. The correctness of that conclusion can be tested by considering the situation such as here where the only information in issue is information falling within s.424A(3). If the Tribunal does not choose to make an oral notification, such obligations as may exist are governed by the procedural elements of s.424A found in subs.(2) with the well known and accepted result that the Tribunal is under no obligation to give the applicant the information. The applicant suggests that the position is reversed if an oral notification is made. If the applicant’s argument were to be accepted, the question of whether the Tribunal had any obligation to give independent country information to an applicant would be determined by its choice of whether to proceed under s.424A(2) or under s.424A(2A) and s.424AA. That is to say the substantive obligation would be determined by the procedure adopted. Such a proposition is mistaken.
Section 424AA is a procedural provision and the Tribunal’s choice to use it cannot affect its substantive obligation under s.424A(1) nor the exceptions to that obligation found in s.424A(3).
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 November 2008
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