SZMPT v Minister for Immigration

[2008] FMCA 1549

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMPT v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1549

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – delegate referring to class of similar claims involving a single migration agent – Tribunal not mentioning the delegate’s statement at any stage of the review – whether the Tribunal breached s.424A(1) of the Migration Act 1958 (Cth) considered.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 425

MZXBQ v Minister for Immigration [2008] FCA 319
SZBEL v Minister for Immigration (2006) 231 ALR 592
SZBYR v Minister for Immigration (2007) 235 ALR 609
SZKLG v Minister for Immigration [2007] FCAFC 198

Applicant: SZMPT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2051 of 2008

Judgment of: Driver FM

Hearing date: 14 November 2008

Delivered at: Sydney

Delivered on: 14 November 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2051 of 2008

SZMPT

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 10 July 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background facts are conveniently summarised in the Minister's submissions filed on

   
   13 November 2008

   . I adopt as background for the purposes of this judgment paragraphs 2 to 4 of those submissions:

   The applicant arrived in Australia on 16 October 2007: court book (“CB”) 95 [2], and applied for the visa on 29 November 2007: CB 1-45. The delegate interviewed the applicant on 21 February 2008 (CB 47-48), and refused the visa on 27 February 2008: CB 49-56. The applicant applied to the Tribunal for review on 28 March 2008: CB 57-61. The Tribunal held a hearing on 30 April 2008: CB 71-72, and on 13 June 2008 wrote to the applicant pursuant to s.424A of the Migration Act 1958 (the Migration Act): CB 80-83.

   The applicant claimed to fear persecution in China for reason of her political opinion.  She claimed that she protested against the illegal reclamation of land on her home town of Dongbi Island by the local authorities in Fujian Province.  She claimed to have joined a local group which printed and distributed leaflets critical of the government in 2007, that her husband was arrested by the PSB and that the applicant was being looked for by them.  She claimed her home was searched by the PSB and that she was in hiding in a distant town before coming to Australia on a passport in another person’s name.  She claimed that she was on a black list and would be arrested if she returned to China.  She claimed to fear being implicated by a friend’s husband who had been arrested.  See generally CB 97-112.

   The Tribunal noted that it was unable to make a finding as to the applicant’s identity because of the conflicting documents she had presented, and rejected her claim that she needed a false passport to leave China: CB 113-115 [105-112].  The Tribunal also rejected the applicant’s claims to have been involved in distributing anti‑government leaflets, noting that this claim was not credible given her previous lack of political involvement: CB 116-118 [120-126] and further noting a number of inconsistencies in her claims: CB 118-121 [127-138].  As a result the Tribunal rejected all of the applicant’s claims to past involvement in protest activity or that she was or is now wanted by the PSB in connection with such activities, or that she left China for this reason: CB 121-123 [139-143].  The Tribunal concluded that the applicant was not a witness of truth: CB 123 [144], and that her claimed fears were not well founded: CB 123 [145-146].

2. These proceedings began with a show cause application filed on 7 August 2008. The applicant now relies upon an amended application filed on 9 October 2008. I incorporate the ground and particulars in the judgment:

   1.      The Tribunal failed to comply with s.424A(1).

   Particulars

   (a) The Tribunal failed to give written particulars of the information contained in Folios 66 to 72 of the applicant’s Department file CLF2007/184188.  The information in those folios related to specific individuals, being other claimants for protection visas and to their migration agent.  The specific information was that the claims made by each of those applicants were similar to the claims made by the applicant in support of her protection visa application and that they had been made by the same migration agent.

3. The only evidence I have before me is the court book filed on 3 September 2008.

4. The amended application raises an issue of substance.  At CB 55, in the fourth paragraph on that page, the delegate referred to similar claims made by other protection visa applicants who engaged the same migration agent as this applicant:

   The applicant’s claims bear many similarities to that of other PRC Protection visa applicants who have lodged their application in NSW, mostly from Fujian province.  The similarities are that the applicant has been wronged in some way, in some cases the applicant and an associate approach government authorities.  The applicant then plays a part in organising a protest, and then claims to have been subsequently arrested and detained, and to have secured release by way of a substantial bribe.  A sample of recent cases which bear some or all of these characteristics are found at folios 66 to 72 of the applicant’s file [5.1].  All the sample cases have been prepared by the same Migration agent.

5. The applicant's migration agent was Ms Priscilla Yu.  The implication in the delegate's statement was that the claims made by the applicant may fall into a class of concocted claims of a similar nature and that the migration agent, Ms Yu, may have been a key player in the concoction of the claims.  That imputation of course is an attack upon the integrity of Ms Yu who is, I understand, a registered migration agent.  It is a matter for the Minister's Department to consider whether any action should be taken against Ms Yu on the basis that she has adopted a practice of assisting applicants to make false protection visa claims.  If the Minister's Department is unwilling to take such action it is in my view an improper approach to determine individual applications on a basis that Ms Yu may be engaging in such a practice. 

6. The Tribunal, to its credit, did not adopt the approach of the delegate. The Tribunal considered the applicant's claims on their merits. The Tribunal dissected the applicant's claims in detail and found a lack of credibility in them, largely due to identified inconsistencies. The Tribunal in its reasons makes no mention at all of the quoted statement in the delegate's reasons. Neither does it appear from the Tribunal's reasons that there was any discussion about that issue at the hearing conducted by the Tribunal. Neither was the information referred to by the delegate referred to at any stage in the review process by the Tribunal.

7. The Tribunal wrote to the applicant on 13 June 2008, pursuant to s.424A of the Migration Act, seeking comment on various pieces of information that appeared to the Tribunal to be a reason or part of a reason why the decision of the delegate might be affirmed: CB 80-83. There was no mention in that letter of the information referred to by the delegate. The issue is whether there should have been. Counsel for the Minister properly conceded that the question of whether compliance with s.424A required disclosure of the information referred to by the delegate cannot be answered simply by reference to the Tribunal reasons.

8. As the High Court said in SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17], the operation of s.424A falls to be determined independently of the Tribunal’s reasons and in advance of them. In support of the proposition that the Tribunal did not breach s.424A, counsel for the Minister took me to the decision of the Full Federal Court in SZKLG v Minister for Immigration [2007] FCAFC 198 at [33]:

   Neither approach is necessarily preferable to the other. Whilst one decision-maker might have considered that the existence of the earlier application, on different grounds, and apparently abandoned in 2004, demonstrated, of itself, that the appellant’s current application could not be accepted, another decision-maker might have considered that he or she could not evaluate the material at all until the appellant had been heard. The test for the purposes of s 4242A is not based upon whether the material in question suggests a particular decision. The test depends upon the Tribunal’s "consideration". The verb to "consider" has many shades of meaning. One strand of meaning, according to the Shorter Oxford English Dictionary is to ‘Look at attentively, survey, scrutinize ...’. That is not its meaning in s 424A. An alternative strand of meaning appearing in the same reference work is ‘Be of the opinion that’. Clearly, it is that meaning which is intended in s 424A. The obligation to proceed pursuant to s 424A arises only if the Tribunal forms the opinion that particular information would be the reason, or part of the reason, for affirming the relevant decision. The conditional nature of the obligation reflects the fact that the Tribunal must consider the question in advance of its decision, considering the information upon which it would act, should it decide to affirm the relevant decision. Although the appellant asserts that the Tribunal formed the requisite opinion prior to the s 425 hearing, we see no evidence to that effect. It may have done so, but it may also have proceeded on the basis that the importance of the information could only be assessed after the appellant had given evidence. It is also possible that prior to the hearing, the Tribunal had not fully appreciated the potential significance of the information. It is not apparent that the Tribunal took the course contended for by the appellant.

9. Counsel also properly took me to the decision of MZXBQ v Minister for Immigration [2008] FCA 319 at [6], [7], [21] and in particular [27] which leant some support to the applicant's contention that the Tribunal did breach s.424A. It is noteworthy that Heerey J in MZXBQ referred to paragraph 33 of SZKLG in his judgment at [19].

10. It might be argued that if a delegate relies upon information which objectively requires disclosure to an applicant and which has not been disclosed prior to a review application to the Tribunal, the Tribunal must disclose such information pursuant to s.424A unless the Tribunal is able to say clearly that the information is not relevant. This would be consistent with the High Court's approach to the interpretation of s.425 of the Migration Act in SZBEL v Minister for Immigration (2006) 231 ALR 592, and specifically the proposition that an applicant is entitled to proceed on the basis that the issues before the delegate will also be the issues arising for consideration before the Tribunal upon review unless the Tribunal advises otherwise.

11. However, such an approach to the interpretation of s.424A would substantially devalue the consideration of the issues by the Tribunal. Section 424A(1)(a) identifies as disclosable information, information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review. The Tribunal stands in the shoes of the delegate but is in no way bound by the delegate's consideration. While the contrary is certainly arguable, in my view the Tribunal did not breach s.424A in this case.

12. The decision of the Federal Court in MZXBQ, while binding on me, is distinguishable on the basis that the information in issue in that case was raised at the hearing conducted by the Tribunal. In the present case, on the available material, I conclude that there was no mention of the information referred to by the delegate at the Tribunal hearing. In fact there was no mention of the issue in any document generated by the Tribunal at any stage of the review process.

13. The Tribunal decision reflects a competent and careful consideration of the applicant's claims by the presiding member. The Tribunal was clearly alive to its responsibilities under s.424A. It invited comment on information in the letter dated 13 June 2008. I am willing to infer from the Tribunal's complete silence at all stages of the review process about the information referred to by the delegate that the Tribunal did not consider that information to be a reason, or part of the reason, for affirming the decision under review.

14. If I am wrong in my reasoning at [11]-[12] and the Tribunal did fall into error by failing to disclose the information pursuant to s.424A, I would nevertheless decline to provide relief in the exercise of discretion. The information in issue was in no sense determinative of the review application. The applicant's claims were considered on their merits in detail and comprehensively rejected. The Tribunal found the applicant's claims to have no credibility considered in their own right without reference to whatever claims may or may not have been made by other applicants at other times. In my view no purpose would be served in this matter by requiring a redetermination of the application by the Tribunal.

15. I find that the decision of the Tribunal is free from jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I so order.

16. Costs should follow the event in this case.  The Minister seeks scale costs of $5,000.  The applicant did not wish to be heard on costs.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  19 November 2008