SZNDR v Minister for Immigration
[2009] FMCA 371
•29 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNDR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 371 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal has given an opportunity to provide documents to the Refugee Review Tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 425; 474; pt.8 div.2 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 197 CLR 510 SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152 Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZNDR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 72 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 April 2009 |
| Date of last submission: | 2 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr H. Bevan |
| Solicitors for the Respondent: | Mr G. Johnson, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 72 of 2009
| SZNDR |
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 3 December 2008 and handed down the same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and previously worked as a taxi driver in China (“the Applicant”).
The Applicant arrived in Australia on 15 July 2008 having departed legally from Hong Kong on a passport issued in his own name and a visitor visa issued on 8 July 2008.
On 21 June 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 16 September 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 8 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 3 December 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 12 January 2009, 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 (“the Convention”).
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 in China as a result of his organisation of a demonstration against corruption in the police force. The Applicant claimed he was detained for two years. The Applicant claimed police continued to visit him following his release and he fled China using his parents’ savings.
The Delegate’s decision
On 11 August 2008, the Applicant attended an interview with the Department to discuss his claims.
On 16 September 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Tribunal’s review and decision
On 8 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of his review application.
On 21 October 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 3 December 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.
On 3 December 2008, the Applicant gave evidence at the hearing before the Tribunal in which the Applicant expanded upon his previous claims.
The Tribunal noted that it had before it the Department’s file, the material referred to in 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 counsel for the First Respondent in his written submissions as follows:
“17. The Tribunal accepted the Applicant’s citizenship of China but accepted none of his other claims (CB 71 [32]-[33]).
18. The Tribunal:
(a) believed the Applicant’s story was “concocted” and “based loosely” on his colleague’s successful application, which the Tribunal believed the Applicant had studied (CB 71 [33]);
(b) did not believe that the Applicant and his former colleague would not have made contact in Australia, particularly if their fathers had spoken (CB 71 [33]);
(c) believed that the Applicant’s claim to have undergone re-education was “invented” belatedly to overcome his lack of response to the Tribunal’s questioning about events between his release in 2006 and departure for Australia (CB 71 [34]);
(d) did not accept the Applicant’s claim to have undergone re-education (CB 72 [38]);
(e) did not accept that it was feasible that the Applicant’s father would have had the ability to overcome the obstacles to obtaining a passport for the Applicant while he was in detention but would have been unable to prevent his incarceration (CB 72 [36]);
(f) found that the Applicant was not in detention or subject to any judicial proceeding in February 2005, when he obtained his passport (CB 72 [36]).
19. The Tribunal did not accept that the Applicant had been detained or mistreated in any way for reason of his political opinion or membership of a particular social group. Nor did the Tribunal accept that the Applicant had been monitored by Chinese authorities (CB 72 [37]).
20. Further, the Tribunal found that the Applicant has been able to work and support his family and has not suffered harm amounting to persecution (CB 72 [38]).
21. The Tribunal did not accept that there is a real chance of the Applicant suffering harm amount to persecution for a Convention reason (CB 72 [39]) and, accordingly, affirmed the delegate’s decision not to grant a protection visa (CB 72 [41]).”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 5 March 2009, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. The Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he intended to rely was verified by affidavit. On that occasion it was explained to the Applicant that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake that goes to the jurisdiction of the Tribunal. On 25 March 2009 the Applicant filed an amended application.
At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Court also provided to the Applicant, headed in his own language, a contact list of providers of legal assistance and interpreting services. The Applicant has participated in the Court’s legal advice scheme.
At the directions hearing, the Court also provided to the Applicant a copy of the applicable costs schedule of the Court and explained to the Applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remains unpaid it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. The Court then confirmed with the Applicant that he wished to continue with his application.
At the commencement of the final hearing before this Court, the Applicant confirmed that he relied on the grounds contained in the amended application filed on 25 March 2009. The Applicant confirmed that he had filed no other evidence or written submissions.
The grounds of the amended application are expressed as follows:
“That the decision of the Refugee Review Tribunal (“the Tribunal”) was affected by jurisdictional error:
1. in that the Tribunal did not comply with s 425 Migration Act 1958 in that it did not accord the applicant procedural fairness because it did not give the applicant a specific opportunity to give evidence or make submissions on determinative issues.
Particulars
a. In his application for a protection visa the applicant claimed that because he organized a demonstration he was charged and imprisoned for two years. He claimed his best friend had also been put into prison and that since his own release he had lost contact with his best friend and had not heard from him since then.
b. In an interview with the delegate the applicant claimed that he was incarcerated for assaulting a police officer and served two years in gaol for this. At the interview the applicant apparently claimed that he did not organize any demonstrations, but merely arranged for the delivery of leaflets to other taxi drivers. At the interview he apparently claimed he was convicted and incarcerated for assaulting a police officer. The delegate was not satisfied that the applicant had been arrested or imprisoned. In his decision the delegate did not explicitly state why he was not satisfied of these claims except to say that the applicant’s response to the delegate’s question concerning the circumstances that lead up to his arrest and imprisonment was delivered in a rehearsed manner and with little detail. The delegate made no mention of the applicant’s best friend in his decision.
c. In its decision the Tribunal said it believed that the applicant’s story was concocted and based loosely on the successful application of [his friend]. The Tribunal said id believed the applicant had studied the application. The Tribunal also said it did not believe that if the applicant and [his friend] were colleagues and shared gaol time, they would not have made contact in Australia, particularly as their fathers had talked since the applicant’s arrival.
d. Partly on the basis of the Tribunal’s belief about these matters, the Tribunal did not accept that the applicant had been detained or mistreated in any way for reason of his real or imputed political opinion or membership of any particular social group, or that the PSB had monitored him or his family or interfered with his life.
e. At the hearing the Tribunal did not warn or say anything to the applicant to indicate that it believed the applicant had studied the application of [his friend] (sic) or that it believed he had concocted his story on the basis of that application. The Tribunal also did not indicate it did not believe that the applicant had no contact with his friend] (sic) in Australia, if they were colleagues and shared gaol time, and particularly if their fathers had talked since the applicant’s arrival.”
The grounds of the amended application were interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the allegations and in support of his application generally.
At the commencement of the hearing the Applicant sought to tender to the Court two documents that the Applicant claimed he had received from China. The documents purported to be a copy of a summons and criminal sentencing judgment. They were marked Exhibit 1A and Exhibit 2A respectively. The Applicant told the Court that he had not been given an opportunity to give these documents to the Tribunal and did not know whether such documents needed to be sent to the Court or the Tribunal.
A fair reading of the Tribunal’s decision record makes clear that the Applicant at no time raised with the Tribunal that these documents were in his possession and that he sought time from the Tribunal to provide such documents.
In a careful cross-examination of the Applicant by Mr Bevan, of counsel, the Applicant acknowledged that there had been several occasions upon which he could have provided these documents to the Department and the Tribunal. The Applicant also acknowledged that at no time had he told the Department or the Tribunal that such documents existed, nor that he wished to have additional time to provide such documents to the Department or the Tribunal.
The Applicant agreed in cross-examination that he knew that it was very important to give all evidence in support of his claims to the Department and that he told the Department there were no other documents that he could provide in support. The Applicant agreed in cross-examination that at the interview with the Delegate of the Department it was apparent to him that these documents that he stated were in China at the time were very important to him. However, the Applicant acknowledged that he did not take any steps after his interview with the Delegate to ask his family to send the documents to him in Australia in support of his claims.
The Applicant also agreed that he knew that the Tribunal might wish to see the documents but stated that he did not ask family members to send the documents over because his wife and children may be implicated. The Applicant acknowledged that he had received the two letters from the Tribunal inviting him immediately to send any documents he wished the Tribunal to consider. In not sending the documents the Applicant said that the Tribunal had not told him that those documents may need to be sent and that he did not think the evidence was so important. He said he thought that such documents only needed to be presented to the Court. The Applicant also acknowledged that at the conclusion of the hearing the Tribunal asked him if he wished to say anything else and that he did not tell the Tribunal that he had documents in China that he wished to obtain.
A copy of the transcript of the Tribunal hearing was filed by the First Respondent. It is clear from the transcript that at the conclusion of the Applicant’s evidence, the Tribunal said to the Applicant “Is there anything else?” to which the Applicant responded “No”.
Prior to that the Tribunal member had said to the Applicant “I can only make a decision on what you tell me. So if there’s something that’s relevant to your claims which you don’t tell me then I don’t know about and therefore I can’t take it into account. So is there anything else?”
I do not accept the Applicant’s explanation that he did not know whether he should send the documents to the Tribunal or the Court. Even on the Applicant’s own evidence, at no stage did he raise with the Tribunal or the Department the existence of the documents or his desire to seek to obtain the documents. Neither did the Applicant seek any additional time either from the Delegate or the Tribunal to obtain any further documents from China.
In the circumstances, I am satisfied that the Applicant had every opportunity, at least, to seek from the Tribunal an opportunity to obtain such documents in support of his claims. The Applicant made no such attempt.
Accordingly, the Applicant’s complaint that he was not given an opportunity to give to the Tribunal the documents, being Exhibit 1A and Exhibit 2A, is not made out.
Otherwise, the Applicant confirmed that he relied on the grounds as identified in his amended application filed on 25 March 2009.
The terms of the amended application do not make clear the nature of the complaint being made. There is an assertion that the Tribunal did not comply with s.425 of the Act in that it did not accord the Applicant procedural fairness because it did not give the Applicant sufficient opportunity to give evidence or make submissions on determinative issues. To the extent that has been addressed above, I make no further comment.
The particulars provided in support of the ground of the amended application do no more than recite various findings of the Tribunal with which the Applicant does not agree. It was apparent from the Applicant’s submissions that the grounds of the amended application were contained in his complaint that the Tribunal failed to give him the opportunity to give to it Exhibit 1A and Exhibit 2A for its consideration.
The grounds of the initiating application filed on 12 January 2009 make bare assertions of error that are not capable of review by this Court. They are entirely unsupported by particulars, evidence or submissions.
Otherwise, at the heart of the Applicant’s complaints are disagreements with the findings and conclusions of the Tribunal. Such complaints invite 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) 197 CLR 510 (“Abebe”).
A fair reading of the Tribunal’s decision record, together with the transcript of the Tribunal hearing, make clear that the Tribunal explored the Applicant’s claims with him at a hearing and put matters of concern that it had about his evidence to him.
A fair reading of the transcript makes clear that the Applicant’s credibility was an issue for the Tribunal. The Tribunal on several occasions put to the Applicant that it had difficulties with the Applicant’s evidence. A fair reading of the transcript makes clear that the Tribunal clearly expressed its doubts and concerns about the Applicant’s claims of being forced to undergo re-education in circumstances where he had never made such a claim before.
Further, the Delegate’s decision makes clear that the Applicant’s “overall poor credibility” was a reason for the Delegate’s failure to be satisfied that the Applicant was a person to whom Australia has protection obligations. In the circumstances, the Applicant’s credibility was clearly an issue about which the Applicant was, or should have been, aware (SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152 at [47] (“SZBEL”)).
The Applicant also complained in Ground 1 particular (e) that the Tribunal did not indicate to the Applicant that it believed that the Applicant had studied the application of his friend; that the Applicant had concocted his story on the basis of his friend’s application; and that the Tribunal did not believe that the Applicant had contacted his friend in Australia. A fair reading of the transcript of the Tribunal hearing makes clear that the Tribunal put its concerns to the Applicant about his evidence in relation to his friend. These findings were open to the Tribunal on the evidence before it and for the reasons it gave. The complaints made by the Applicant relate to the tribunal’s analysis and evaluation of the Applicant’s evidence. These are the reasoning and thought processes of the Tribunal.
The Tribunal is not required to disclose its reasoning and thought processes. Neither is the Tribunal required to identify the significance of the questions it poses, nor the ultimate issue to which those questions relate (SZBEL at [48]; Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [88]).
In the circumstances, a fair reading of the Tribunal’s decision record, together with the transcript of the Tribunal hearing, make clear that the Applicant was provided with an opportunity to give evidence and present arguments in accordance with the statutory obligations.
It is for the Applicant to satisfy the Tribunal that he meets the criteria required for being a refugee (Abebe at 576; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14]-[16]). If the Tribunal is not so satisfied, s.65(1) of the Act makes clear that the Tribunal, as the relevant decision maker, must affirm the decision under review and refuse the Applicant a protection visa.
Accordingly, none of the grounds raised by the Applicant are 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; had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal then 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 should be dismissed with costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 29 April 2009
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