SZMTO v Minister for Immigration & Anor
[2008] FMCA 1335
•18 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMTO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1335 |
| MIGRATION – Visa – protection visa – application for review of decision by Refugee Review Tribunal – application for order prohibiting the applicant from being removed from Australia – no issue to be responded to. |
| Migration Act 1958 (Cth) ss.424,424A, 425 |
| SZGSK v Minister for Immigration & Anor [2005] FMCA 1928 Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565; [2007] FCAFC 105 SBBS v The Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 |
| Applicant: | SZMTO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2428 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 September 2008 |
| Date of Last Submission: | 18 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2008 |
REPRESENTATION
| Applicant: | Appeared in person via telephone link to Villawood Immigration Detention Centre |
| Solicitor for the Respondent: | Mr Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2428 of 2008
| SZMTO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an urgent application to the Court. The Applicant is currently in immigration detention. He has been in detention for approximately four years.
The application was brought as a matter of urgency and the Applicant filed his application and an affidavit in support today. He sent his application in by fax yesterday, 17th September 2008. He is applying to review a decision of the Refugee Review Tribunal, made on 16th June 2006. His application for review has been given a Court date of 14th October 2008 but his application has been brought before the Court this evening because the Applicant asks the Court to make an order that he should not be removed from Australia while the Court proceedings are pending.
The Applicant has been served with a notice that he is to be removed from Australia tomorrow. It is this notice that has prompted his urgent application to the Court.
Background
The background to this matter is that the Applicant is a citizen of the People's Republic of China. He is of Korean ethnicity and he has asked for and been provided with the services of an interpreter in the Korean language. Because of the urgency of the proceedings, the Applicant and the interpreter have addressed the Court by means of a conference telephone.
The Applicant arrived in Australia on 27th September 2000. However, he did not apply for a Protection (Class XA) visa until 11th May 2005. He made that application after he had been taken into immigration detention. A delegate of the Minister refused his application for a visa two days later on 13th May 2005. On 17th May 2005, the Applicant applied to the Refugee Review Tribunal for a review of that decision. On 30th June 2005, the Tribunal affirmed the delegate's decision not to grant the Applicant a protection visa.
The Applicant then sought judicial review of that decision by means of an application in the Federal Magistrates Court. On 22nd December 2005, Emmett FM made orders dismissing the application (See SZGSK v Minister for Immigration & Anor[1]). The Applicant then appealed against the decision of the Federal Magistrates Court. On 29th March 2006, orders were made by consent by Jacobson J, setting aside the decision of the Federal Magistrates Court. Orders were made by consent in the nature of certiorari and mandamus setting aside the Tribunal decision and remitting the application to the Tribunal for determination according to law.
[1] [2005] FMCA 1928
Application Remitted to the Refugee Review Tribunal
The Applicant attended a further hearing of the Tribunal on 19th May 2006. On that occasion, he was given an interpreter in the Mandarin language. He was represented by a registered migration agent who attended the Tribunal hearing. The Tribunal decision record at page 4 shows that after the hearing had been in progress for over two hours, the Applicant indicated that he had difficulty in expressing himself in Mandarin. The Tribunal adjourned the hearing until 1st June 2006. The Tribunal provided the applicant with an interpreter in the Korean language. The Applicant was accompanied at the hearing on 1st June 2006 by his migration agent.
The Tribunal decision record shows that the Applicant claims to be a Chinese citizen of Korean ethnicity who gave his religion as a Christian. The Tribunal noted that the Applicant had left China illegally by boat, and claimed a fear of persecution if he were to return to China for these reasons:
i)His Christian religion.
ii)His political opinion, because he is a supporter of Taiwanese independence.
iii)His Korean ethnicity.
iv)The fact that he left China illegally and has applied for a protection visa in this country.
The Tribunal’s Decision
The Tribunal signed its decision on 16th June 2006 and, because the Applicant was in detention, notified him of that decision that same day. The Tribunal considered the Applicant's evidence at the hearing and also considered the evidence given to the earlier Tribunal hearing.
The Tribunal had written to the Applicant after the hearing on 5th June 2006. That letter was faxed to the Applicant's migration adviser on 5th June 2006. A copy of that letter or the text of that letter is set out in the Tribunal decision at pages 14 through to 17.
The letter set out information given by the Applicant upon which the Tribunal sought the Applicant's comments. The letter told the Applicant that that information, subject to any comments he made, would be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter set out why the information was considered relevant to the Applicant's case, and asked him to comment in writing by 12th June 2006.
It is clear that this letter was intended to comply with the provisions of s.424A of the Migration Act. The Tribunal noted that it received a written response to its letter from the Applicant's adviser on 7th June 2006. The Tribunal set out the text of the adviser's response on pages 17 and 18 of its decision record.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 18 through to 24 of the decision record.
The Tribunal expressed some concerns about the authenticity of two certificates that the Applicant had submitted relating to his identity. However, the Tribunal was prepared to accept the truth of the Applicant's claim that he was a citizen of the People's Republic of China and that his name was the name he said it was. The Tribunal considered the Applicant's claims to fear persecution in China on these grounds:
“His religion, as a member of an underground Christian church; his Korean ethnicity; and his political opinion as a supporter of Taiwanese independence, a distributor of the illegal religious material and a failed asylum seeker. He also claims to fear that for some or all of these reasons, he will suffer disproportionately severe punishment for having left China illegally.”[2]
[2] See Tribunal Decision Record at page 19.
The Tribunal was not satisfied that the Applicant's account of his experiences in China and the harm that he claimed to have suffered could be relied on. The Tribunal then set out the reasons why it was not satisfied. The Tribunal addressed each of the following matters:
i)The circumstances of his leaving China;
ii)The Applicant’s involvement with Christianity.
iii)The Applicant’s Korean ethnicity;
iv)The Applicant’s political opinion.
The primary reason why the Tribunal did not accept the Applicant's claims was because it was not satisfied that his claims were credible. The Tribunal affirmed the delegate's decision not to grant the Applicant a Protection (Class XA) visa.
Application before this Court
Even though the Applicant was notified of the Tribunal decision on 16th June 2006, he did not seek to commence proceedings in this Court until yesterday, 17th September 2008. I asked the Applicant why he did not seek to commence proceedings earlier and he told the Court that he believed that since he had already been to the Federal Court for review of the earlier Tribunal decision, he was not entitled to commence further Court proceedings. He said to the Court that he did not think about appealing to the Court before today, because he thought the hearing in the Federal Court was just once.
The Applicant concedes in his application that he was notified of the Tribunal decision on 16th June 2006. In his application, he seeks an order, (more correctly, a declaration):
a)That the Tribunal decision is invalid, null and void.
b)An order to redirect the matter to the Tribunal and order the Tribunal to take the matter for further consideration.
c)Particularly relevant, an order not to remove him from Australia while the decision is pending and
d)Any further order that the Court deem appropriate.
He sets out the following grounds in his application:
i)That the Tribunal committed jurisdictional error by failing to comply with the mandatory provisions of s.36(2) of the Migration Act.
ii)That the Tribunal deprived him of natural justice, and the Tribunal Member did not act in good faith in the decision making process.
iii)That the Tribunal decision was not reasonably capable of reference to the decision making power given to the Tribunal Member;
iv)That officers of the Department of Immigration & Citizenship misguided him prior to his application to the Department and the Tribunal made the decision with a preset mind.
I have explained to the Applicant that the Court has jurisdiction to review the decision of the Refugee Review Tribunal, but it does not have jurisdiction to review earlier decisions by Departmental officers prior to the Tribunal hearing.
Applicant’s Submissions
Ground 1
I asked the Applicant to explain the grounds upon which he was relying. In respect of the claim of a failure to comply with s.36(2) the Applicant said that he did not know anything about the section because his application had been prepared by someone who could write English. He went on to say that he could not say anything freely at the Tribunal hearing and he was embarrassed.
Ground 2
In respect of his ground 2, that he was deprived of natural justice, the Applicant conceded that he attended the hearing accompanied by a migration adviser, but said that at the hearing, the Tribunal Member was very rude and grim faced and he could not express himself fully. He complained that the Tribunal Member would not allow him time to think about his answers to the Tribunal Member's questions but would move onto the next question if he did not answer quickly enough.
Ground 3
In respect of the third ground, the Applicant said that the Tribunal decision was unfair and he could not express himself well. He said that he was very embarrassed and nervous and forgot things that he wished to talk about.
Ground 4
In respect of his fourth ground that the Tribunal made the decision with a preset mind, which I take to be a claim of an apprehension of bias, he repeated his claim that the Tribunal Member was very rude and he could not answer properly. He said he could not do anything and could not express himself.
In answers to questions from the Bench, he confirmed that he had been in detention at Villawood for four years, and that he had been in Villawood when he was notified of the Tribunal decision on 16th June 2006. He said that he had brought these proceedings because he really wanted to get another chance. When given the opportunity to expand upon his claims, the Applicant said that the Tribunal hearing was quite unnatural and mentally he felt pressured. He reiterated his claim that he could not express himself and wanted to get another chance at a Tribunal hearing. He complained that an officer of the Department of Immigration & Citizenship had told him that he could not make another application to the Court. He confirmed that he was to be removed from Australia tomorrow, and said that he could not go back to his country and asked for an order to prevent him being removed from Australia.
After the Court had heard submissions from Mr Markus who appeared for the Minister, the Applicant said that he could not return home because he feared that he would be killed by his former manager, for whom he worked. He told the Court the manager had been involved in illegal acts involving smuggling of cigarettes into China from North Korea. He feared that the manager would kill him because he knew about this. In answer to a question from the Bench, the Applicant said that he did not tell this to the Tribunal at the hearing because he thought it was just an individual personal matter.
First Respondent’s Submissions
Mr Markus, who appeared for the Minister, submitted that for the Applicant to be entitled to the relief that he seeks, he needed to demonstrate two things. First, that there is a serious issue to be tried and second, that the balance of convenience favoured the grant of the interlocutory orders that the Applicant seeks.
Mr Markus submitted that the Applicant had not demonstrated that there was a serious issue to be tried. He further submitted that this was not a matter which would be affected by the decision in Minister for Immigration & Citizenship v SZKKC[3] because the Applicant had been notified on the day the Tribunal signed the decision, and the decision was not handed down, but notified to the applicant, because the Applicant was in immigration detention.
[3] (2007) 159 FCR 565; [2007] FCAFC 105
The Applicant conceded that in his application that he was notified on 16th June 2006. However, whilst Mr Markus told the Court the application was incompetent, he was not asking the Court to determine the matter of jurisdiction. The thrust of his submission was that the grounds pleaded in the application and explained by the Applicant, did not raise a serious issue to be determined by the Court.
Court’s Considerations
Ground 1
Considering the grounds raised by the Applicant, the Applicant first claims that the Tribunal did not comply with the mandatory provisions of s.36(2) of the Migration Act. This ground, as Mr Markus submitted, is misconceived. Section 36(2) sets out the criterion for the grant of a protection visa. It needs to be read together with s.65 of the Migration Act, which requires the Minister or the Tribunal, when standing in the shoes of the Minister, to grant a visa in circumstances where the Tribunal was satisfied that all of the criteria for a visa have been met. Sub-s.65(1)(b) provides that:
Section 65 - Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(b) if not so satisfied, is to refuse to grant the visa.
At page 24 of the Tribunal decision, the Tribunal set out that after having considered the evidence as a whole, it was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
Accordingly, the Tribunal found that the Applicant did not satisfy the criterion set out in s.36(2) for a protection visa. There is no error and Ground 1 fails.
Ground 2
The Applicant's ground 2 alleges that he was deprived of natural justice and the Tribunal Member did not act in good faith. Natural justice at common law does not apply. Section 424B of the Migration Act, sets out that Div.4 of Pt.7 of the Act is an exhaustive statement of the natural justice rule.
The Applicant would need to demonstrate that the Tribunal had breached one of the procedural sections in Div.4 of Pt.7. There is no breach of s.424A of the Migration Act, or of s.425. The Tribunal invited the Applicant to attend the hearing and provided him with an interpreter in the Mandarin language as he originally requested. He was accompanied by his migration adviser.
When the Applicant, through his adviser, told the Tribunal he was having difficulty in expressing himself in Mandarin, the Tribunal adjourned the hearing. When the Tribunal hearing recommenced on 1st June 2006, the Tribunal provided the Applicant with an interpreter in the Korean language. The Tribunal told the Applicant at the resumed hearing:
“I explained that the resumed hearing would be conducted in Korean and emphasised that if he was having any difficulty in expressing himself or in understanding what was being said he should immediately bring it to my attention. He did not do so and I am satisfied that he was not prevented from participating effectively in the hearing by any difficulty with interpretation.”[4]
[4] See Tribunal Decision Record at page 10.
There is no breach of s.425. There is no failure by the Tribunal to provide natural justice. The Applicant, as Mr Markus submitted, abandoned the claim that the Tribunal Member did not act in good faith. As to the Applicant's ground 2, it must therefore fail.
Ground 3
The Applicant's ground 3, claims that the Tribunal decision was not reasonably capable of reference to the decision making power given to the Tribunal Member. This ground can now only be a reference to the requirement of s.414 of the Migration Act. That section requires the Tribunal to review a decision if a valid application is made under s.412 of the Act for review of an RRT reviewable decision. There is nothing in the decision to suggest that it is not referable to the power given in s.414. There is no substance therefore to the Applicant's third ground.
Ground 4
The Applicant's fourth ground alleges that the Tribunal made the decision with a pre-set mind. This appears to be an allegation of bias, more particularly apprehended bias. It is well established that bias is a serious allegation and must be strictly alleged and strictly proved. (See SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[5]).
[5] [2002] FCAFC 361
There is no evidence of bias either actual or apprehended. I am satisfied that the Tribunal Member gave the Applicant a proper opportunity to present his case. The very fact that the Tribunal adjourned the hearing and provided an interpreter in the Korean language, after the Applicant complained of difficulty in expressing himself in Mandarin, points to a determination by the Tribunal Member to give the Applicant every opportunity to put his case.
Conclusions
On my reading of the Tribunal decision, the Tribunal set out and addressed all of the Applicant's claims to fear persecution. The Tribunal wrote to the Applicant a letter under the provisions of s.424A of the Migration Act after the hearing. The Applicant was given an opportunity to reply in writing to this letter, and in fact, did so. The Tribunal considered the Applicant's submissions in reply to the s.424A letter.
The reason that the Tribunal decided not to grant the Applicant's review, was that the Tribunal was not satisfied with the credibility of the Applicant's claims. The Tribunal gave reasons for not accepting the credibility of those claims, and the Tribunal's factual findings were open to it on the evidence before the Tribunal. The Tribunal essentially rejected the Applicant's own evidence.
The solicitor for the Minister has submitted that there is simply no case to be raised by the Applicant, that is, that needs to be responded to. There is no issue arising from the Tribunal's decision that would, in my view, lead to a finding of jurisdictional error. The Applicant was notified of the Tribunal's decision more than two years ago. He has only brought an application for review of that decision in the last 24 hours. He has had ample opportunity to apply to the Court long before this. It is significant that when he did bring an application, it was listed before the Court as a matter of urgency. It came on at short notice at 4:30pm this afternoon.
The Applicant has not made out any case for an order to be made not to remove him from Australia. There is no substantive issue in his application for review of the Tribunal decision. It follows that his application will be dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 23 September 2008
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