SZMTM v Minister for Immigration
[2008] FMCA 1642
•8 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMTM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1642 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 425 |
| Minister for Immigration Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NACB v Minister for Immigration [2003] FCAFC 235 NATC v Minister for Immigration [2004] FCAFC 52 Re Minister for Immigration; Ex parte S20/2002 [2003] HCA 30 VWST v Minister for Immigration [2004] FCAFC 286 W404/01A v Minister for Immigration [2003] FCAFC 255 WAJQ v Minister for Immigration [2005] FCAFC 79 WAJW v Minister for Immigration [2004] FCAFC 330 |
| Applicant: | SZMTM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2409 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 8 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr B May Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2409 of 2008
| SZMTM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 19 August 2008.
Background relating to the applicant's protection visa claims and the Tribunal decision on them is conveniently summarised in the Minister's submissions filed on 2 December 2008. I adopt as background, with minor amendments, for the purposes of this judgment paragraphs 4 through to 7 of those written submissions:
The applicant is a 32 year old woman born in Fujian Province, China, who arrived in Australia on 10 February 2008 on a Subclass 456 business visa (relevant documents “RD” 31). She submitted an application for a Protection (Class XA) visa on 7 March 2008 (RD 1-25). The applicant's protection claims were set out in a typed statutory declaration in English accompanying the application (RD 34-36). The applicant attended an interview with a delegate of the Minister on 1 April 2008 (RD 40-41). The delegate decided to refuse to grant the applicant a protection visa on 14 April 2008 (RD 52-60).
The applicant lodged an application for review to the Tribunal on 9 May 2008 (RD 62-65). She appeared at a hearing before the Tribunal with the assistance of a Mandarin interpreter on 9 July 2008 (RD 76-77). The Tribunal invited the applicant to comment on or respond to information by letter dated 10 July 2008 (RD 78-81). On 24 July 2008, the applicant, via her authorised representative, submitted a response to that invitation together with a statutory declaration and further supporting material (RD 88-104). The Tribunal affirmed the decision of the delegate to refuse the applicant a protection visa in a decision handed down on 14 August 2008 (RD 108-128).
Applicant’s claims
The applicant's protection claims were set out by the Tribunal in its decision record (at RD 111-121). In summary, the applicant's claim was based on the Convention grounds of political opinion and membership of a particular social group. The applicant had been subjected to domestic violence over a prolonged period in China. She had told her story to an intern journalist, Ms Zhang, who decided to write stories and publish articles about the applicant's experiences. Ms Zhang helped the applicant escape from her husband. The applicant and Ms Zhang were later arrested for anti-revolutionary activities. The applicant was interrogated and detained for one month. She continued to be harassed after her release from detention. The applicant feared further harm from her husband and the authorities in China.
Tribunal’s findings and reasons
The applicant did not impress the Tribunal as a reliable, credible and truthful witness (RD 122, [90]). In reaching this view, the Tribunal had regard to the implausibility of significant aspects of the applicant's protection claims, inconsistencies between her evidence to the delegate and to the Tribunal and other reasons, which it explained in its findings and reasons. The Tribunal was of the opinion that the totality of the applicant's oral evidence showed a propensity to tailor her evidence in a manner which achieved her own purpose (RD 126, [105]). The Tribunal did not accept the applicant's claims about her previous experiences in China (RD 126, [105]). The Tribunal did not give any weight to certain documents provided by the applicant in support of her claim (RD127, [106]). The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations.
These proceedings began with a show cause application filed on 16 September 2008. The grounds in that application are expressed discursively. The applicant reproduces at length her protection visa claims and aspects of the Tribunal decision. In substance, the applicant asserts bias, procedural unfairness and a failure to address her claims.
I received as evidence the book of relevant documents filed on 17 November 2008. That is the only evidence I have before me.
The applicant made oral submissions. Those essentially restated the grounds in the show cause application. She repeated the allegation of bias. Such allegations are too frequently and too readily made. The applicant has produced no evidence to support the allegation of bias. When pressed on that issue, she referred to documents reproduced at RD 94 to 101 which were submitted to the Tribunal. The Tribunal gave no weight to those documents because it had comprehensively rejected the applicant's credibility. The Tribunal's adverse credibility conclusions were open to it and the failure to accord weight to the applicant's documents does not point to bias or indeed any jurisdictional error.
The applicant asserts unfairness in the Tribunal decision. The process followed by the Tribunal was, however, fair. The Tribunal met its obligation under s.425 of the Migration Act 1958 (Cth) (“the Migration Act”) to invite the applicant to a hearing. That hearing opportunity was a real one. I also note that the Tribunal wrote to the applicant purportedly pursuant to s.424A of the Migration Act on 10 July 2008. That was both cautious and generous by the Tribunal as it arguably went beyond the Tribunal's statutory obligations. However, there is no jurisdictional error in the Tribunal, for reasons of prudence and caution, going beyond its statutory obligations.
I have myself considered the Tribunal's reasons. In my view the Tribunal's consideration of the applicant's claims was particularly cautious and comprehensive. I see no error, let alone any jurisdictional error in the Tribunal's reasons or in its process. I otherwise agree with and adopt for the purposes of this judgment, with minor amendments, paragraphs 8 through to 24 of the Minister's written submissions:
The grounds of review in the application are set out in 17 numbered paragraphs. The application relies on a number of generalised assertions 'supported' by particulars, which extract large sections of the Tribunal's decision.
The essence of the applicant's complaint appears at paragraph 1 of the application, which reads as follows:
While deciding my application, the Tribunal failed to assess my claims against actual country background in China; or the Tribunal failed to consider my claims properly; or the Tribunal's finding has included a reasonable apprehension of bias; or the Tribunal made its finding unreasonably, illogically and based on nothing but only its unwarranted assumption.
Paragraphs 2-7 restate aspects of the applicant's protection claims and the Tribunal's findings.
In paragraph 8, the applicant alleges that the Tribunal made a 'significant mistake' in reaching its finding in respect of Ms Zhang's articles. The applicant then alleges that the Tribunal failed to carefully and properly consider her claims before, during and after the Tribunal's hearing.
In paragraphs 9-12, the applicant restates aspects of her protection claims.
In paragraph 13, the applicant alleges that the Tribunal knew nothing about the actual situation in China and assessed her claim according to the 'country background of Australia.
Paragraph 14 appears to restate the earlier grounds of review in paragraph 1 of the application.
In paragraph 15, the applicant alleges that the Tribunal 'failed to consider my important documentary evidence'.
The particulars of paragraph 16 allege that the Tribunal failed to consider the applicant's claim regarding the circumstances of her departure from China.
In paragraph 17, the applicant asserts that the Tribunal did not consider her application fairly and properly and that it erred in law.
Unreasonableness and illogicality
The application does not identify an proper basis for concluding that the Tribunal's decision was unreasonable or irrational or based on an unwarranted assumption. In particular, no jurisdictional error is identified in the Tribunal's findings in respect of Ms Zhang's articles. The Tribunal's conclusions on this issue were factual findings that were reasonably open on the evidence before it. The first respondent submits that there is nothing in the decision itself which would support this ground of review, even if want of logic or irrationality in itself amounts to jurisdictional error, which is to be doubted (see NACB v Minister for Immigration [2003] FCAFC 235 at [30] (Tamberlin, Emmett and Weinberg JJ); W404/01A v Minister for Immigration [2003] FCAFC 255 at [35] (French, Lee and Carr JJ); NATC v Minister for Immigration [2004] FCAFC 52 at [25] (Heerey, Sundberg and Crennan JJ); VWST v Minister for Immigration [2004] FCAFC 286 at [16]-[18] (Kiefel, Marshall and Downes JJ); WAJW v Minister for Immigration [2004] FCAFC 330 at [31]-[32] (Nicholson, Jacobson and Bennett JJ); and WAJQ v Minister for Immigration [2005] FCAFC 79 at [22] (Marshall, Mansfield and Siopis JJ).
Failure to consider actual country background in China
Whether the Tribunal considered it necessary to determine the applicant's protection claims having regard to the country background of China was a factual matter for it alone to decide. There is nothing in the decision itself to suggest that the Tribunal assessed the applicant's protection claims by reference to the 'country background of Australia'. In any case, it is submitted that such a generalised assertion in relation to the approach adopted by the Tribunal cannot give rise to jurisdictional error.
Failure to consider claims carefully and properly
The applicant's assertion that the Tribunal did not consider her claims 'carefully and properly' is not meaningfully particularised and does not disclose any reviewable error on the part of the Tribunal. The Tribunal addressed all the applicant's claims but could not be satisfied of any of them in light of its adverse credibility finding.
The applicant's claim that the Tribunal failed to consider the circumstances of her departure from China has no foundation in fact. This issue was specifically referred to by the Tribunal (RD113, [39]; RD 114, [47]). The Tribunal discussed the issue with the applicant in some detail at the hearing (RD 115, [54]-[55]; RD 120 [83]). It then made express findings about the applicant's claims in relation to her departure from China in its decision (RD 125-126, [102]-[103]). No error is demonstrated in the Tribunal's approach and findings in respect of this issue.
Allegation of bias
The application provides no particulars which identify the precise nature of the allegation of bias; nor has the applicant filed any evidence, such as a transcript of what occurred at the hearing, to support such an allegation. There is nothing on the face of the Tribunal's decision record that demonstrates bias on the part of the Tribunal, and accordingly, the allegation is misconceived irrespective of whether it is intended to be in the nature of actual or apprehended bias.
Failure to consider documentary evidence
The applicant's complaint about the Tribunal's failure to give any weight to her documentary evidence is misconceived. The weight to be given to each piece of evidence was a matter for the Tribunal. Moreover, it is quite clear that the Tribunal found the applicant's evidence to be so lacking in credibility that it was therefore open to it to reject the documentary evidence provided as being of no weight. The Tribunal's reference to what was said by the High Court in Re Minister for Immigration; Ex parte S20/2002 [2003] HCA 30 was relevant and correct in the particular circumstances of this case in which the rejection of the applicant’s credibility was both comprehensive and fundamental (RD 127, [106]).
Other matters
It is submitted that the other generalised assertions in the application essentially cavil with the Tribunal's factual findings and seek to engage the Court in merits review, which is not its function (Minister for Immigration Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). It is noted that the Tribunal's decision was primarily based on its adverse credibility finding in respect of the applicant. It is submitted that such a finding was open on the evidence before the Tribunal and there was no error in the way it went about its task.
I conclude that the applicant has failed to advance any arguable case of jurisdictional error by the Tribunal. Neither has any arguable case of error apparent to me from my own reading of the material.
I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event in this case. The Minister seeks scale costs of $2,500. The applicant asserted an inability to pay but impecuniosity is not a reason for the Court to refrain from making the costs order. 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 $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 December 2008
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