SZMQF v Minister for Immigration
[2008] FMCA 1670
•16 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMQF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1670 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal’s decision was biased – whether Refugee Review Tribunal provided opportunity to applicant to support his claims – whether Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether Refugee Review Tribunal complied with s.424AA of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1), 36(2), 65(1), 91R, 91S, 424A, 424A(1), 424AA, 425, 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 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 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 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | SZMQF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2088 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 28 November 2008 |
| Date of last submission: | 28 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2008 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Mr A. Marcus and Ms C. Kelso, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2088 of 2008
| SZMQF |
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 2 July 2008 and handed down on 15 July 2008.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and to have previously worked as a labourer in Vietnam for a Chinese company (“the Applicant”).
The Applicant arrived in Australia on 23 December 2007 having departed legally on a passport issued in his own name and a subclass 676 tourist visa issued on 6 December 2007.
On 23 January 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 6 March 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 4 April 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 2 July 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 12 August 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 his protection visa application in which he stated that he feared persecution by his previous employer in Vietnam as well as the Chinese authorities.
The Applicant claimed he and other employees in Vietnam were subjected to inhumane working conditions, resulting in the death of one worker. The Applicant claimed that following the death, he and other workers organised a strike to demand fairer working conditions. The Applicant claimed this strike was suppressed by security, injuring many workers. He claimed he was regarded as the leader and was detained for 3 weeks from 22 October to 9 November 2007.
The Applicant claimed that, with the assistance of a sympathetic security guard, he escaped and went into hiding for about half a month before travelling to Australia on 22 December 2007.
The Applicant claimed he was being sought by his employer in Vietnam, corrupt Vietnamese officials and “Mafia organisation”, as well as Chinese authorities. He claimed his family have been questioned many times by the police.
The Tribunal’s review and decision
On 4 April 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 17 April 2008, the Tribunal wrote to the Applicant informing him 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 20 May 2008 to give oral evidence and present arguments.
The Applicant attended the hearing on 20 May 2008 and gave evidence in which the Applicant expanded upon his written 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 solicitor for First Respondent in her written submissions as follows:
“6. The Tribunal accepted some aspects of the applicant's claims, namely, that he was employed in Vietnam as a skilled labourer from November 2006, that he had been required to pay a bond and owed money in China and that the applicant's working conditions in Vietnam were not adequate. The Tribunal had doubts, but ultimately accepted, that a labourer at the company had died due to a workplace injury (RD 152, [50]).
7. The Tribunal nonetheless found that the applicant was not a credible witness and did not accept any of his other claims (RD 152, [50]). It set out the areas where it found the applicant's evidence to be problematic and lacking credibility (RD 152-153, [51]-[53]). It also considered that information contained in the applicant's tourist visa application lodged at the Australian Consulate in Ho Chi Minh City to be 'highly adverse' to his claim that he knew nothing about that application and that it had all been organised by the Vietnamese guard (RD 153-154, [54]). Further, it found that the applicant had not given truthful evidence in relation to the signature on the tourist visa application (RD 154, [55]).
8. The Tribunal accepted that the applicant was required to pay a bond to his employer and may have owed money in China but did not consider that the evidence established a Convention nexus (RD 154-155, [57]).”
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 he relied on the Grounds contained in an application filed on 12 August 2008.
The Grounds of the application are expressed to be as follows:
“1.The Tribunal’s decision is unreasonable and irrational; and the Tribunal failed to consider my claims fairly and properly; and the Tribunal’s finding has included a reasonable apprehension of bias.
…
The Tribunal rejected my other claims or evidences on the Ground which is unreasonable and irrational; and the Tribunal failed to consider my claims fairly and properly; and the Tribunal’s finding has included a reasonable apprehension of bias. Firstly, the Tribunal made a finding that the circumstances of my escape from the place in which I was detained were highly problematic and lack credibility. The Tribunal, however, made such a finding actually only for the reason that I did not mention why the security guard took his risks to save me and help either in my written materials or at the Departmental interview. But,
- The Tribunal failed to consider that it would obviously be impossible for any applicants to put everything in his or her written materials; and
- The Tribunal also failed to consider that the immigration officer, at the Departmental interview, has neither asked me about why the security guard helped me nor raised the issue; and
- The Tribunal particularly failed to consider that the purpose for the Tribunal’s hearing, subject to s.425 of the Act, is to provide a chance for the applicant like me to give oral evidences in support of the application and to present arguments against the issue arising from the review.
…
Actually, there are two applications, which have been submitted to the Department, in relation to my case. One is the application, which has been lodged in the overseas and which was for my visitor’s visa; and the other is the application for my protection visa, which has been lodged since I came to Australia. At the Departmental interview and further during the Tribunal’s hearing, I was confused by these two completely different applications. As a matter of fact, I have not signed any documents in relation to the application of my visit visa; and I have only signed the documents in relation to my protection visa application.
Thirdly, the Tribunal rejected my claim mainly based two of above-mentioned reasons, which is definitely unreasonable and irrational; and I do not think that the Tribunal has considered my claims fairly and properly; and I do believe that the Tribunal’s finding has included a reasonable apprehension of bias.
2.The Tribunal failed to comply with its obligation under s.424AA of the Act.
…
I have to accept that the Tribunal did give me particulars of the information that the Tribunal consider would be the reason, or a part of the reason, for affirming the decision that is under review, but the Tribunal failed to ensure, as fas 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.
I also have to accept that the Tribunal may advise me that I may seek additional time to comment on or respond to the information; but the Tribunal failed to ensure me to understand the meaning of “seek additional time to comment on or respond to the information”.
3.The Tribunal failed to ensure in writing, 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; and
The Tribunal failed to invite me to comment or respond to the information in writing.”
The Applicant was invited to make submissions in support of each of the Grounds and in support of his application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application.
The Applicant submitted that the Tribunal’s decision was irrational and unfair in that it had used information provided by him in his tourist visa application as a reason for affirming the decision under review. The Applicant submitted that the Tribunal accepted that the information in the tourist visa application was correct and that the Tribunal’s decision was based on that information alone. The Applicant also submitted that the Tribunal should have given him this information for comment in writing and that he was “not given a fair chance to argue against the information”. The Applicant submitted that the Tribunal’s decision was “very subjective” and the Tribunal had not allowed him to put forward additional written information.
These submissions are addressed below in the course of consideration of the Grounds. In short, they are founded on misapprehensions of the Tribunal’s findings and its obligations in the conduct of its review.
Ground 1
Ground 1 commences with the bare assertions that the Tribunal’s decision is unreasonable and irrational and that the Tribunal failed to consider the Applicant’s claims fairly and properly and its finding “included a reasonable apprehension of bias.”
Below, I have broken up Ground 1 into 6 different particulars that I understand address the Applicant’s complaints in Ground 1.
Ground 1 particular 1- Tribunal’s findings adverse credibility findings
In support of Ground 1, the Applicant provided particulars that asserted, inter alia, that the Tribunal rejected the Applicant’s claims of having escaped from detention because it found his evidence to be “highly problematic and lack credibility”, in circumstances where the Tribunal only had regard to his evidence that the security guard took risks to save the Applicant and to help him in preparing his tourist visa application and interview with the Department. However, a fair reading of the Tribunal’s decision makes clear that the Tribunal’s reasons for affirming the decision under review were not based solely on the Tribunal’s rejection of the Applicant’s evidence about the alleged assistance rendered to the Applicant by the security guard in Vietnam. Even if it were, this does not by itself demonstrate jurisdictional error on the part of the Tribunal.
The issue for the Tribunal about the evidence given by the Applicant to the Tribunal about the assistance rendered to him by the security guard was its inconsistency with information provided by the Applicant to the Department during an interview. The Tribunal raised with the Applicant its doubt that the security guard would put himself at risk out of concern for the Applicant’s well-being. The Tribunal noted that the Applicant responded that the security guard had been willing to assist him to escape because he had helped the guard when the guard was involved in a motorcycle accident. The Tribunal put to the Applicant that he had not mentioned this explanation to the Department at his interview and noted that the Applicant said he had not been asked that question by the Department. However, the Tribunal noted that it listened to the tapes of the interview with the Department and was satisfied that the Applicant was asked about that issue by the Delegate.
There was no transcript or tapes of the Tribunal’s hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. The Applicant was directed on 1 October 2008 to file and serve any transcript for the hearing he intended to rely and to give notice to the First Respondent and the Court if he was intending to rely on the tapes of the Tribunal hearing. Nothing was filed by the Applicant in accordance with those directions. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the review history, the hearing and, in particular, the oral evidence given by the Applicant.
The Tribunal found that the Applicant would have told the Department during the interview that the security guard had assisted him because the Applicant had helped him and taken him to hospital after he had been involved in a motorcycle accident, if indeed that evidence was true. The Tribunal found this explanation by the Applicant to be unsatisfactory and did not accept as truthful the Applicant’s evidence about assistance in escaping rendered to him by a security guard in Vietnam.
That adverse credibility finding affected the Tribunal’s evaluation of the Applicant as a credible witness. The Tribunal found that the circumstances of the Applicant’s alleged escape were “highly problematic and lack credibility.” The Tribunal found that the Applicant had not escaped from detention as alleged and that he had not been detained by his employers for organising and participating in the strike.
Those findings, including the adverse credibility findings, were open to the Tribunal on the evidence and material before it and for the reasons it gave. The Tribunal’s findings in relation to the Applicant’s credibility are matters “par excellence” for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, this particular of Ground 1 is not made out.
Ground 1 particular 2 – Impossible for Applicant to address all in written materials
To the extent that the Applicant also asserted in support of Ground 1 the particular that “The Tribunal failed to consider that it would obviously be impossible for any applicants to put everything in his or her written materials”, such an assertion does not establish jurisdictional error on the part of the Tribunal.
A fair reading of the Tribunal’s conduct of its review of the Delegate’s decision makes clear that the Tribunal on at least two occasions (4 April 2008 and 17 April 2008) prior to the hearing invited the Applicant to send to it any new documents or written arguments he wished the Tribunal to consider. Further, the Tribunal’s letter dated 17 April 2008 inviting the Applicant to come to a hearing, made clear to the Applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal summarised in detail the Applicant’s claims and evidence before it, explored those claims with the Applicant and put to the Applicant concerns it had arising out of his claims and evidence. A fair reading of the Tribunal’s decision record makes clear that it had regard to the Applicant’s explanations.
A fair reading of the Tribunal’s decision record does not support the contention that the Applicant was not given an opportunity to put everything to the Tribunal in writing or orally that he wished to place before the Tribunal. The Tribunal’s findings are considered more fully in the course of the Reasons in relation to other particulars of Ground 1.
Accordingly, this particular of Ground 1 is not made out.
Ground 1 particular 3 – Whether the Department asked about security guard incident
Ground 1 also states that “The Tribunal also failed to consider that the immigration officer, at the Departmental interview, has neither asked me about why the security guard helped me nor raised the issue.” However, the Tribunal’s decision record states that the Tribunal had listened to the tapes of the Departmental interview and was satisfied that the Applicant was asked by the Delegate why the security guard would render assistance to him.
Moreover, there is no evidence before the Court to suggest that the Tribunal’s decision record is not an accurate summary of the Applicant’s evidence given to it at the hearing. No transcript or other evidence was filed by the Applicant to the contrary, despite the Applicant having been given an opportunity to do so. At the first directions hearing before this Court on 1 October 2008, the Applicant was given leave to file and serve any further evidence, including a transcript of the Tribunal hearing. In the circumstances, as stated above in these Reasons, the Court accepts as accurate the Tribunal’s summary in its decision record of the evidence of the Applicant given to it at the oral hearing.
The Tribunal had regard to the totality of the Applicant’s evidence and in doing so found that the Applicant was not a credible witness. Even so, the Tribunal accepted, with reluctance, that the Applicant had worked in Vietnam for a Chinese company; that the Applicant had been employed in Vietnam as a skilled labourer (and not as a production manager as asserted by the Applicant in his visitor visa application); that the Applicant commenced employment in Vietnam in November 2006; that the Applicant was required to pay a bond and owed money in China; that the working conditions for Chinese workers in Vietnam were not adequate; accepted that accidents occur in work places; and, that a worker at the company in which the Applicant was employed died due to a workplace injury.
However, as stated above, the Tribunal comprehensively rejected the Applicant’s claims of having suffered persecution as a result of organising a strike following the injury to the worker, including that he had organised any strike. The Tribunal rejected the Applicant’s claims of having escaped detention with the assistance of a Vietnamese security guard and rejected the Applicant’s claims that his family members in China had been questioned or that he feared arrest by the Chinese authorities associated with the company who employed him if he were to return to China.
As stated above, a fair reading of the Tribunal’s decision record makes clear that the Tribunal had detailed regard to the Applicant’s claims and put to the Applicant in detail concerns about those claims and noted the Applicant’s responses. The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, this particular of Ground 1 is not made out.
Ground 1 particular 4 – s.425 – No chance to give evidence in support of application
This particular states that “The Tribunal particularly failed to consider that the purpose for the Tribunal’s hearing, subject to s.425 of the Act, is to provide a chance for the applicant like me to give oral evidences in support of the application and to present arguments against the issue arising from the review.”
The Tribunal invited the Applicant to come to a hearing in accordance with s.425 of the Act the Applicant attended the hearing and gave evidence. Otherwise, this complaint is dealt with in Ground 1 particular 2 above.
Accordingly, this particular of Ground 1 is not made out.
Ground 1 particular 5 – Confusion by Applicant on information in applications for different visas
Ground 1 also states that the Applicant was “confused by these two completely different applications” he had made and that he did not sign any documents in relation to the tourist visa and only signed the documents in relation to the protection visa application. The Tribunal rejected the Applicant’s evidence that he had not signed the tourist visa application and found that it contained information inconsistent with that provided by the Applicant in his protection visa application.
In the circumstances, the assertions in this particular appear to be no more than a disagreement with the findings of the Tribunal that the inconsistency in the information provided in those two visa applications was part of the reason for affirming the decision under review. Such a complaint seeks 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).
Accordingly, this particular of Ground 1 is not made out.
Ground 1 particular 6 – Bias
To the extent that Ground 1 asserts the Tribunal’s finding “included a reasonable apprehension of bias” such an assertion is serious and requires evidence, such as a transcript of the Tribunal hearing (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
The Applicant was directed on 1 October 2008 by this Court to file and serve any affidavit containing additional evidence to be relied upon including the transcript of the hearing, by 10 November 2008. The Order informed the Applicant that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that a tape recording would not be received without leave of the Court obtained prior to the hearing. No evidence was filed by the Applicant.
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]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open 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]).
In the circumstances, the allegation of bias or apprehended bias is rejected.
Accordingly Ground 1 is not made out.
Grounds 2 and 3
Ground 3 asserts a failure by the Tribunal to comply with its obligation under s.424A(1) of the Act. No particulars are provided in support of Ground 3 to identify the information said to have given rise to an obligation under s.424A(1). Similarly Ground 2 asserts a failure to comply with obligation under s.424AA of the Act unsupported by relevant particulars.
However, I understand from the Applicant’s oral submissions to the Court that the information upon which the Applicant relies in support of the contentions of breaches of ss.424A and 424AA, arise out of the information provided by the Applicant in his tourist visa application. The Applicant submitted that the Tribunal accepted that information as correct and then had regard to it in finding that the Applicant claims in support of his protection visa application were inconsistent.
However, the Tribunal did not accept as correct the information provided by the Tribunal in his tourist visa application. The Tribunal did no more than note the information provided by the Applicant in his tourist visa application and the inconsistent information provided by the Applicant in his protection visa application. The reason for affirming the decision under review arose from the Tribunal’s consideration of the inconsistencies arising out of that information rather than the information provided in the tourist visa application. In the circumstances, the information in the Applicant’s tourist visa application was not “information” for the purposes of s.424A(1), in that it was not information that formed part of the reason for affirming the decision under review (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26).
In relation to Ground 2, as s.424AA is permissive only, where there has been no breach of s.424A(1) of the Act, there cannot be a breach of s.424AA of the Act.
Accordingly, Grounds 2 and 3 are not made out.
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 at a hearing; 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 sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 16 December 2008
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