SZMSD v Minister for Immigration
[2009] FMCA 1077
•26 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMSD v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1077 |
| MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizen of China – Falun Gong practitioner – whether the Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36, 91R, 424A, 474, 476 |
| SZMSD v Minister for Immigration & Anor [2009] FMCA 96 Minister for Immigration and Citizenship v SZLFX (2009) 258 ALR 448; 83 ALJR 1029; [2009] HCA 31 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 |
| Applicant: | SZMSD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1715 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 October 2009 |
| Date of Last Submission: | 1 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Solicitors for the Applicant: | No Solicitor on the record |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1715 of 2009
| SZMSD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is applying for review of a decision of the Refugee Review Tribunal made on 30th June 2009. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
By her application filed on 20th July 2009 the Applicant seeks orders:
a)That the decision of the Tribunal be quashed;
b)That the matter be remitted to the Tribunal to be determined according to law; and
c)Costs.
Background
The Applicant is a citizen of China who is in Australia for the second time. She first arrived on 16th September 2006 and left on 13th December of that year. On 31st August 2007 the Applicant arrived back in Australia and applied for a Protection (Class XA) visa on 27th November 2007.
In a statement accompanying her application, the Applicant claimed to be a Falun Gong practitioner. She set out in detail the incident that she claimed led her to leave China:
Then something terrible happened at about 8:00 PM on the 14th March 2007. As usual, Mei Diao and I went to the home of Pei Shan, (We had always been doing our practice at the home of Pei Shan in private). Then we started our practice. At about 9:00 o’clock, the doorbell rang unexpectedly. The daughter of Pei Shan went to open the door. Suddenly two police and two security guards burst into the home. When they entered, the practice music was still playing and the Falun Gong book was on the table…The police seized our tape player and the Falun Gong book in front of us. Then three of us were taken to local police station (Zhuchi).[1]
[1] See Court Book at page 26
The Applicant set out in her statement she was detained and interrogated by the police. She remained in police custody for 24 hours.
After she was released, the applicant went into hiding. She made arrangements to obtain another visa to enter Australia. On 30th August 2007 the Applicant left China via Hong Kong. After she arrived in Australia, the Applicant joined Falun Gong practitioners in Sydney and took part in various Falun Gong-related activities.[2]
[2] Court Book at 28
The Applicant attended an interview with a Departmental officer on 12th February 2008.
On 25th February 2008 a delegate of the Minister refused the Applicant’s application for a protection visa. The delegate was not satisfied that the Applicant had any involvement with Falun Gong in China, or that she had been arrested, interrogated and detained by the police. The delegate was satisfied that the Applicant had been involved with Falun Gong in Australia but found that the Applicant’s participation in Falun Gong activities was solely for the purpose of strengthening her application for a protection visa. Consequently, the delegate disregarded the evidence of the Applicant’s activities in Australia under the provisions of s.91R(3) of the Migration Act.[3]
[3] Court Book at 89
Application to the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision on 17th March 2008.[4] On 25th July 2008 the Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. The Applicant sought judicial review of that decision from this Court and on 24th February 2009 Smith FM issued writs of certiorari and mandamus, remitting the application to the Tribunal for determination according to law (SZMSD v Minister for Immigration & Anor[5] ).
[4] Court Book at 95
[5] [2009] FMCA 96
The Tribunal wrote to the Applicant on 20th March 2009, inviting her to attend another hearing on 30th April.[6] At the request of the Applicant’s lawyers, the hearing was adjourned to 28th May 2009.[7]
[6] Court Book 247
[7] Court Book 257
On 30th April 2009 the Tribunal wrote to the Applicant in terms of s.424A of the Migration Act, inviting her to comment on or respond to information that the Tribunal considered would, subject to any comments or response that she made, be the reason, or a part of the reason, for affirming the decision under review.[8] The letter informed the Applicant that the Department of Immigration and Citizenship had received a “dobbing” letter alleging that the Applicant’s claims were false:
· The Department received information that your claim to have been arrested together with Wu Mei Diao and Zhang Pei Shan is false and that police have never been to Zhang Pei Shan’s home;
· The Department also received information that you and Mr Wei Jiang intimidated people attending a Falun Gong practice group in Parramatta in order to persuade them to provide letters of support for you.[9]
[8] Court Book 263
[9] Court Book 263-264
The Tribunal’s letter invited the Applicant to give comments or otherwise respond at an interview to take place at the beginning of the hearing on 28th May 2009.[10]
[10] Court Book 264
The Applicant’s solicitors sent a letter to the Tribunal on 26th May 2009, attaching twelve statutory declarations, copies of petitions, a translation of a notification from the Applicant’s former employer and three photographs of the Applicant attending three different Falun Gong protest marches.[11]
[11] Court Book 266-267
The Applicant attended the hearing on 28th May 2009 and gave evidence. The hearing was not completed on that day and a further hearing was set for the 17th June 2009.[12]
[12] Court Book 326
On 16th June 2009 the Applicant’s solicitors wrote to the Tribunal, saying:
The applicant has recently given us telephone numbers for Wu Mei Diao and Zhang Pei Shan who reside in China. The applicant stated in her protection visa application that she practised Falun Gong in China with Wu Mei Diao and Zhang Pei Shan. Subject to confirming instructions from the applicant tomorrow morning, we expect that at the hearing tomorrow:
a. We will give the telephone numbers to the Tribunal member.
b. We will ask the Tribunal member to phone Wu Mei Diao and Zhang Pei Shan and obtain oral evidence from them.[13]
[13] Court Book 329
The Applicant attended the hearing on 17th June 2009, accompanied by:
a)Her representative, Mr Abrahams;
b)Mr Ben Zipser of counsel, as an observer;
c)Mr Jia Mo Li, a witness;
d)Mr Zeng Lin, a witness;
e)Mr Zhen Dong Ma, a witness; and
f)Mei Fen Wang, a witness.[14]
[14] Court Book 334
For some reason, the telephone numbers of Wu Mei Diao and Zhang Pei Shan were not provided to the Tribunal at the hearing. However, a Tribunal officer contacted the Applicant’s adviser and asked for the numbers, which were provided in a faxed letter later that same day.[15]
[15] Court Book 338
On 22nd June 2009 the Applicant’s representative forwarded to the Tribunal a statutory declaration of Zhen Dong Ma and a CD of an audio recording. The declaration stated that the CD contained a recording of his telephone conversations with Wu Mei Diao and Zhang Pei Shan.[16]
[16] Court Book 342
The Refugee Review Tribunal Decision
The Tribunal made its decision on 30th June 2009, affirming the decision not to grant the Applicant a Protection (Class XA) visa.[17]
[17] Court Book 347
In its Findings and Reasons, the Tribunal referred to the large quantity of material supporting the Applicant’s claim on the one hand and the material submitted to the Department, which came from the Applicant’s sister.
The Tribunal stated:
On the other hand, there is material submitted by her sister tending to show that she is not a genuine Falun Gong practitioner. This material was disregarded by the delegate because of the difficulty authenticating it. The Tribunal has attempted to authenticate or disprove it without success. A letter purporting to have been written by one of the people with whom the applicant claims to have been arrested and which denies the truth of her claims contains a telephone number in China. The Tribunal telephoned the number and spoke to a person who confirmed the contents of the letter. However, the applicant claims that the person to whom the Tribunal spoke was not in fact the person she claimed to be. She certainly appeared to the person to whom she spoke to be much older than she should have been. The applicant provided two other telephone numbers. However, when the Tribunal telephoned those numbers, one appeared to be disconnected and the person who answered the other hung up on learning she was going to be asked questions of detail – but not before answering a question as to the year of her birth which was inconsistent with information previously provided to the Tribunal. The applicant provided a CD purporting to be a recording of a telephone conversation with these two people and confirming the applicant’s claims, but I cannot be sure under what circumstances those conversations took place and will not, accordingly, give the recording any weight. Indeed, as a result of the considerable effort the Tribunal has made to verify or not the authenticity of the material submitted to it and to the department, I find myself totally frustrated and unable to rely on any of it.[18]
[18] Court Book 363 at paragraph [36]
The Tribunal found that copies of documents purporting to be court or police documents involving the Applicant were not genuine. However, the Tribunal went on to state:
Having said that, I note that I have had in another case the experience of someone submitting a non-authentic document attesting to facts which, on inquiry, turned out to be true. I will therefore include these documents amongst the many on which I cannot rely one way or another.[19]
[19] Court Book 364 at [38]
The Tribunal found the Applicant’s evidence to be very unsatisfactory. In particular, the Tribunal found that:
· The Applicant’s knowledge of Falun Gong was so weak that the Tribunal did not accept that she could have taught anyone in China
· Her description at the earlier Tribunal hearing of the circumstances of her arrest lacked credibility
· The Tribunal did not accept that she was arrested or dismissed from her job because of her Falun Gong practice.
The Tribunal did not accept that the Applicant had had difficulty in responding to the delegate’s questions at the Departmental interview due to inadequate interpretation, nor did it accept her explanation for the length of time it took the applicant to return to Australia after her claimed arrest in March 2007.
The Tribunal went to consider that the Applicant, whilst having had no contact with Falun Gong in China, may have become a sincere devotee in Australia and would want to continue the practice on her return to China. However, the Tribunal did not accept that possibility, on the basis of her answers to the Tribunal’s questions about Falun Gong, described as “very deficient” and “quite inadequate”.[20]
[20] Court Book 364-365 at [42]
The Tribunal was not satisfied that the Applicant’s practice of Falun Gong in Australia had been undertaken other than to further her claim for protection and therefore disregarded that activity, under s.91R(3) of the Act.[21]
[21] Court Book 365 at [43]
The Tribunal found that the Applicant did not have a well founded fear of persecution for a Convention reason and was 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 (Class XA) visa.
Application for Judicial Review
In her application, the Applicant relied on three grounds of review. However, her counsel, Mr Zipser, informed the Court that the Applicant only pressed the ground in paragraph 1 and no longer pressed the other two grounds.
The ground upon which the Applicant relies is:
The Tribunal, at paragraph 36 of its decision, referred to two telephone numbers given by the applicant and continued:
“However, when the Tribunal telephoned those numbers, one appeared to be disconnected and the person who answered the other hung up on learning she was going to be asked questions of detail – but not before answering a question as to the year of her birth which was inconsistent with information previously provided to the Tribunal.”
Section 424A of the Migration Act 1958 (Cth) provides that the RRT must “give to the applicant …particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review” and invite the applicant to comment on the information. The Tribunal, in breach of s.424A, did not give to the applicant the above information and invite her to comment on it.
The Applicant’s Submissions
Counsel for the Applicant submitted that, after the second hearing day on 17th June 2009 the Tribunal attempted to telephone Wu Mei Diao and Zhang Pei Shan on the telephone numbers provided by the Applicant’s representative. The results were disappointing because:
a)One telephone number appeared to be disconnected;
b)The person who answered the other number “hung up on learning she was going to be asked questions of detail – but not before answering a question as to the year of her birth which was inconsistent with information previously provided to the Tribunal.”[22]
[22] Court Book 363 at [36
The submission is that this information was information within the meaning of s.424A(1) of the Migration Act. The Tribunal did not give the information to the Applicant and invite the Applicant to comment on or respond to it. If the Tribunal had given that information to the Applicant and had invited her to respond to it, she would have taken further steps in relation to the evidence of those two people, such as:
a)Obtaining signed statements from them;
b)Asking the Tribunal to check whether it had phoned the correct numbers;
c)Asking the Tribunal to hold a further hearing at which the Tribunal phoned the two people in the presence of the Applicant at an arranged time; or
d)Arranging for another person to telephone those two people and give sworn evidence of the conversation between that person and the two proposed witnesses.
Mr Zipser submitted that, in the circumstances, the Tribunal failed to comply with s.424A of the Migration Act and thereby fell into jurisdictional error. He referred to the decision of the High Court in Minister for Immigration and Citizenship v SZLFX[23] and submitted that it should be distinguished. He submitted that the reason why the Tribunal made the telephone calls was because the information that it sought to obtain and did obtain was important for its reasons in determining the application.
[23] (2009) 258 ALR 448; [2009] HCA 31
The First Respondent’s Submissions
Counsel for the First Respondent Minister, Mr Smith, submitted that the matters referred to cannot be considered as “information” to which s.424A(1) applies. In order to do so, the Tribunal must consider that the matters would be the reason or part of the reason for affirming the delegate’s decision.
Counsel for the Minister submitted that the reasons prepared by the Tribunal are the only indication of what the Tribunal considered would be and were the reasons for the decision. The reason was that the Tribunal did not accept that the Applicant had practised Falun Gong in China, because of the Applicant’s own evidence. No part of those reasons included information about telephone calls made by the Tribunal, and it can only be concluded that the Tribunal did not consider that this information would be the reason or part of the reason for the decision. Accordingly, the Tribunal was not required to give written particulars to the Applicant for her comment or response (Minister for Immigration and Citizenship v SZLFX[24] at [24]-[26].
[24] supra
Further, he submitted, the Tribunal did not consider that the information would be the reason for the decision because none of it contained, in and of itself, a denial of the Applicant’s claim to be owed protection obligations (see SZBYR v Minister for Immigration and Citizenship[25] at [17]).
[25] (2007) 81ALJR 1190; [2007] HCA 26
The decision of Heerey J in MZXBQ v Minister for Immigration and Citizenship[26] at [27]-[29] contains a useful analysis of the decision in SZBYR.
[26] (2008) 166 FCR 483; [2008] FCA 319
Conclusions
In SZBYR, the High Court said at [17]:
The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s.424A(1)(a) is to be determi9ned in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s.36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations.[27]
[27] (2007) 235 ALR 609; [2007] HCA 26 at [17]
The High Court also considered the matter in SZLFX at [24] and [25]:
As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship,[28] s.424A depends on the RRT’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the note.
As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship,[29] s.424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review.
[28] (2007) 164 FCR 578; [2007] FCAFC 198 at [33]
[29] (2008) 166 FCR 483; [2008] FCA 319 at [29]
In the present case, the Tribunal attempted to telephone the two people concerned on the telephone numbers provided, but met with no success. This happened after the hearing, because the Applicant’s representative did not supply the telephone numbers until the day after the hearing.[30]
[30] Court Book 338
The Tribunal decision contains an eloquent, and very human, expression of frustration at not being able to verify the information, one way or the other:
Indeed, as a result of the considerable effort the Tribunal has made to verify or not the authenticity of the material submitted to it and to the department, I find myself totally frustrated and unable to rely on any of it.[31]
[31] Court Book 363 at [36]
Quite clearly, this is not a “rejection, denial or undermining” of the applicant’s claims for protection. It means that, despite considerable efforts, the Tribunal was not able to obtain the information that it sought. It is not, therefore, a reason or a part of the reason for affirming the decision under review. Thus, there was no need for the Tribunal to put this material to the Applicant for comment or response under s.424A(1).
The Tribunal rejected the Applicant’s claims because it did not believe that she had been a Falun Gong practitioner in China or that she had been arrested and detained in China for that reason.
There is no breach of s.424A of the Act. There is no jurisdictional error.
The Tribunal decision is a privative clause decision and not subject to orders in the nature of certiorari or mandamus (s.474).
The application will be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 3 November 2009
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