SZNEN v Minister for Immigration
[2009] FMCA 224
•4 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNEN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 224 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa to the applicant – applicant claiming persecution in China as a Falun Gong practitioner – no reviewable error. |
| Migration Act 1958 (Cth), ss.424AA,425,474 |
| SZMCD v Minister for Immigration & Citizenship [2008] FMCA 1039 referred to SZLWI v Minister for Immigration & Citizenship [2008] FCA 1330 referred to SZMCD v Minister for Immigration & Citizenship [2008] FMCA 1039 referred to SZLML v Minister for Immigration & Citizenship [2009] FCA 83 referred to SZMAE v Minister for Immigration & Citizenship [2008] FCA 1701 referred to SZITH v Minister for Immigration & Citizenship [2008] FCA 1866 referred to |
| Applicant: | SZNEN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 189 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 March 2009 |
| Date of Last Submission: | 4 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 189 of 2009
| SZNEN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
In this matter the applicant seeks a review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 24 December and handed the decision down on 30 December 2008. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa. The proceedings before the Court today have been dictated by an amended application that the applicant filed on 2 March 2009, two days before the hearing. The grounds in his original application filed on 27 January 2009 were of a generic nature but the amended application has been prepared for him by a barrister on the Refugee Review Tribunal Legal Advice Panel. The applicant wishes to rely on that amended application which contains two grounds, both directed towards a specific set of circumstances in the Tribunal hearing. The first ground alleges a breach of s.424AA of the Migration Act and claims that that was a jurisdictional error on the part of the Tribunal. The second ground asserts a failure to afford the applicant procedural fairness at the hearing by not complying with s.425 of the Migration Act and thereby falling into jurisdictional error. As a result of these claims, the applicant seeks:
a)a writ of certiorari quashing the decision of the Refugee Review Tribunal;
b)a writ of mandamus directing the Tribunal to consider and determine his application for a protection visa according to law; and
c)a writ of prohibition directed to the first respondent, the Minister for Immigration & Citizenship, restraining the Minister from acting upon or giving effect to the Tribunal decision.
In the course of the hearing the Court has explained to the applicant that in order to make orders granting him the relief that he seeks the Court does need to be satisfied that jurisdictional error has been made out. Notwithstanding the late filing of the amended application, I have granted leave to the applicant to rely on that amended application as he wishes to do so. Counsel for the Minister, Mr Cleary, indicated to the Court that there would be no objection to leave being given to rely on that document and even though the written submissions on behalf of the Minister have been filed prior to the amended application and did not address the issues, counsel was in a position to make oral submissions to the Court about the two new grounds in the amended application and certain matters raised by the applicant in his oral submission.
By way of background, the applicant arrived in Australia on 11 July 2008. He applied for a protection (Class XA) visa on 24 July. In his original application he claimed that he was seeking protection in Australia because:
I lost my job and have been harassed by police. I know this happen because me and my wife are Falun Gong and in China they harass us[1].
[1] See Court Book at page 22
However, in a statutory declaration received by the Minister's Department on 10 September 2008, the applicant made different claims. That statutory declaration, which can be found at pages 44 through to 51 of the Court Book, claims a well-founded fear of persecution because the applicant is a committed Christian and has been since the year 2000. He claimed to have been a member of an Underground Church and members of that church had been arrested by the authorities in April 2006. He claimed that he had been detained in the Hangu detention centre in a cell by himself for three days. He claimed to have continued to go to church but suffered harassment by the authorities and suffered difficulty in his employment. He claimed that he decided to leave China and travelled to Australia. He had also claimed that he had visited Tibet and had been in Tibet from August 2007 until March 2008 and he had been detained and questioned by police when he was there. It was the circumstances of his visit to Tibet that attracted some attention from the Tribunal and led to some critical findings being made by the Tribunal which are relevant to the proceedings before the Court today. A delegate of the Minister refused the applicant's application for a visa on 23 September 2008.
The applicant applied to the Refugee Review Tribunal for a review of that decision on 14 October. The Tribunal invited the applicant to attend a hearing and on 3 December 2008 the applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language. The Tribunal signed its decision on 24 December and handed the decision down on 30 December 2008 affirming the decision not to grant the applicant a protection visa. A copy of the Tribunal decision record can be found in the Court Book at pages 102 through to 133.
The Tribunal, after setting out the law to be applied, set out under the heading Claims and Evidence the material given first of all in the application for a protection visa. The Tribunal considered the applicant's passport and the statutory declaration which was submitted on 10 December 2008. The applicant was interviewed by a delegate of the Minister on 23 September 2008 and the Tribunal set out a summary of the interview where, amongst other things, the applicant's original claim about having been a Falun Gong member was discussed. The delegate noted that the applicant stated that at first he believed in Falun Gong but around the year 2000 he became a Christian. He had suffered some persecution as a Falun Gong member but had suffered more for being a Christian. The Tribunal set out in detail the applicant's evidence to the hearing on 3 December. That summary commences at page 113 of the Court Book and goes to page 122.
The Tribunal considered independent information about the issue of passports in China, checks that are done at international airports when people are leaving China, a variety of matters relating to Christianity, including the significance of the Bible and the significance of the Lord's Prayer, and matters relating to travel to Tibet. The Tribunal at the hearing inquired of the applicant about the circumstances of his travel to Tibet and the travel arrangements. The Tribunal set out how the applicant said that he travelled to Tibet by train and alighted at a station in a town with the Chinese name of Rikeze, although that town is in fact in Tibet. The Tribunal went on to confirm with the applicant that he caught the train in Beijing, transferred at a place called Wulumuqi and got off at Rikeze. The Tribunal then asked him where he went and the applicant said that he went to another part of Tibet and went to a village called Najin.
The circumstances of the travel raised some suspicions in the mind of the Tribunal and the Tribunal challenged the applicant about his description of the travel to Tibet. The Tribunal referred to independent country information and challenged the applicant on his story based on that information:
The Tribunal indicated the information it had before it contradicted his evidence:
(a) He said he got the train at 4 pm, whilst it left at 9.30 pm.
(b) The train goes directly from Beijing to Tibet.
(c)On the material before the Tribunal passengers do not change trains.
(d)On the material before the Tribunal there is no train stop in a town named Rikeze.
All of that information raises concerns that his story may be false[2].
[2] See Court Book at page 119
The Tribunal had a discussion with the applicant about this information and showed the applicant maps of Tibet and asked him to indicate where the town of Rikeze was located. The applicant was unable to do so, stating that the maps were not in Chinese, although the translator at the Tribunal hearing translated various names into Chinese for the applicant. However, the Tribunal records the applicant as stating that he could not read the map because it was not in Chinese.
The Tribunal recorded that it put a number of matters to the applicant under the provisions of s.424AA of the Migration Act. The Tribunal set out on pages 121 and 122 material it had discussed with him about which it had some concerns:
Pursuant to s.424AA of the Migration Act the Tribunal indicated to the applicant at the hearing that it had discussed country information with him about Christianity and trains to Tibet. It had discussed his answer at the delegate's interview regarding Falun Gong. It had advised him that if it considered his conduct in Australia in attending a church was solely for the purposes of his application it must disregard it. The Tribunal indicated he had given comments on everything during the hearing. The Tribunal then indicated that he was able to provide further comments or response to the information. The Tribunal indicated he could give a further response now or would he like further time to respond or comment. The Tribunal indicated that when it had discussed the information which had created concerns in its mind, those concerns may cause his protection visa application to fail. The Tribunal gave as an example if it decided he was not a Christian. The applicant stated he did not know much in China but here he goes to the Chinese church every week. He stated he is a churchgoer and believer. Maybe he is not a Christian in Australia. The Tribunal indicated that it would consider the evidence and make a decision in writing. As he had not sought further time to comment or respond, it would seek to make a quick decision. He did not respond[3].
[3] See Court Book at page 121 - 122
The Tribunal decision was partly divided into numbered paragraphs but for a section of about 10 pages did not have any paragraph numbers at all. In a paragraph numbered 30 the Tribunal set out a summary of what is clearly intended to illustrate compliance with s.424AA of the Migration Act:
During the hearing the Tribunal orally gave particulars of any information that the Tribunal considers would or may be the reason or a part of the reason for affirming the decision. The Tribunal ensured that the applicant understood the relevance of the information. It indicated the information had created concerns and these may cause his application to fail. The Tribunal invited him to comment or respond to the information and advised him he could seek additional time to comment/respond. The applicant commented/responded at the hearing and did not seek additional time. The Tribunal therefore did not adjourn the review, nor did the Tribunal consider that the applicant reasonably needed additional time to comment or respond[4].
[4] See Court Book at page 122
In its Findings and Reasons the Tribunal accepted that the applicant had Chinese nationality and assessed his claims against that country. The Tribunal found that the applicant's claims are based on the Convention ground of religion and political opinion. It noted a number of reasons as to why it did not accept key parts of his claims and found that the applicant was not a credible witness and rejected his claims in their entirety. The Tribunal set out the reasons why it reached those findings:
The Tribunal reaches these findings based upon:
· The contradictory claims made in his protection visa application and to the Tribunal. In his protection visa application he claimed he was harassed by the Chinese authorities and feared to return as he was "Falun Gong". He subsequently claimed to be a Christian and fears to return because of his Christianity and a link with Tibet.
· The applicant's scant and confused account of his Christian beliefs and experiences.
· The Tribunal's rejection of his claim to have travelled to Tibet.
· The applicant's account of his detention and arrangements to depart which is contradicted by the actual issue date of his passport[5].
[5] See Court Book at page 126
The Tribunal then set out in detail why it rejected those claims under the headings:
a)The applicant's contradictory claims;
b)Scant account of his Christian experiences and beliefs;
c)The applicant's claimed travel to Tibet;
d)The applicant's account of his preparations to leave China.
The Tribunal considered that the applicant was not a credible witness and found he had fabricated his story for the purpose of claiming refugee status. The Tribunal concluded that the applicant did not have a genuine fear of persecution for any reason at all. The Tribunal said:
The Tribunal cannot discern any other circumstances which might give rise to a real chance of prospective harm let alone persecution. The Tribunal concludes that the applicant does not face a real chance of persecution for any reason[6].
[6] See Court Book at page 131
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for one or more of the Convention reasons and was not satisfied that he was a person to whom Australia has protection obligations under the Refugees Convention. Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant commenced proceedings in this Court by filing his application and affidavit in support on 27 January 2009. His amended application which was filed on 2 March relies on two completely fresh grounds:
a)The second respondent fell into jurisdictional error by failing to comply with s.424AA of the Migration Act in relation to independent information concerning train travel to Tibet from Beijing and the apparent non-existence of a train station at Rikeze (known as Shigatse) on that train line.
The ground then sets out the references from the Tribunal decision record relating to that matter and adds in brackets:
The applicant notes that the Full Court of the Federal Court is yet to hand down its decision in SZMCD v Minister for Immigration & Citizenship, an appeal from the decision of this Court in SZMCD v Minister for Immigration & Citizenship (2008) FMCA 1039. The result in that appeal is likely to bear on the above ground.
The second ground claims that the Tribunal fell into jurisdictional error by failing to afford the applicant procedural fairness and in not complying with s.425 of the Migration Act. The particulars of that ground refer to the applicant being shown maps of Tibet and being asked if he could show where the town of Rikeze was located, and the particulars that relate to the jurisdictional error appear in (d) and (e):
(d)The second respondent did not provide to the applicant sufficient oral explanation which was reasonably necessary to enable him to understand the independent information and its significance for the decision under review.
(e)The second respondent did not give to the applicant a sufficient opportunity to give evidence or make submissions relating to the independent information and its significance for the decision under review.
The applicant attended Court unrepresented and made some oral submissions. Not surprisingly, they did not relate to the grounds in his amended application that had been prepared for him by counsel but dealt with more general matters. He claimed the Tribunal had no understanding about the Chinese Underground Church. He claimed to have been nervous during the Tribunal hearing. He claimed that the Tribunal member made his decision based on information obtained from the Chinese government and Chinese propaganda web sites. He claimed also that the Tribunal did not turn its mind to any finding of prospective harm if he were to go back to China.
Mr Cleary of counsel who appeared for the Minister submitted that the grounds in the amended application did not disclose jurisdictional error. In particular he submitted that a failure to comply with s.424AA of the Act does not constitute jurisdictional error and referred the Court to the Full Court appellate decision of SZLWI v Minister for Immigration & Citizenship[7] particularly at [19] where his Honour Gilmour J referred to the operation of s.424AA and spoke with approval of the decision of this Court in SZMCD v Minister for Immigration & Citizenship[8] at [56] and other paragraphs. I was also referred to the decisions of SZLML v Minister for Immigration & Citizenship[9], SZMAE v Minister for Immigration & Citizenship[10] and SZITH v Minister for Immigration & Citizenship[11] on that same point. Further, it was submitted that even though there was no obligation, nor can there be, to comply with s.424AA of the Migration Act, the Tribunal did in fact do so as appears from the decision record.
[7] [2008] FCA 130
[8] [2008] FMCA 1039
[9] [2009] FCA 83
[10] [2008] FCA 1701
[11] [2008] FCA 1866
As to the claim of a failure to provide procedural fairness under s.425, it was submitted that there was no failure and the Tribunal made a factual decision based on independent country information and its contradiction of the applicant's oral evidence, all of which was discussed with the applicant at the hearing. There was, as he put it, no hidden issue because those matters were discussed at length. It was also submitted that none of the matters raised by the applicant in his oral submissions amounted to jurisdictional error.
Dealing with the first ground in the amended application, the alleged failure to comply with s.424AA of the Migration Act, I am of the view, and was certainly of the view in SZMCD v Minister for Immigration & Citizenship, that s.424AA does not impose any obligation on the Tribunal and not complying with s.424AA does not of itself amount to jurisdictional error. If a Tribunal does not comply with s.424AA, the result is that if there is a jurisdictional error it must be a breach of s.424A of the Act. This matter has, with respect, been discussed in SZLWI v Minister for Immigration & Citizenship where his Honour said at [19]:
S.424AA does not impose any obligation on the Tribunal. It enables the Tribunal, if it chooses to do so, to give oral particulars of adverse information to an applicant at a hearing that may otherwise need to be given in writing under s.424A(1): SZMCD v Minister for Immigration and Citizenship [2008] FMCA 1039 at [56]. If the Tribunal chooses to give oral particulars of information under s.424AA but fails to comply with the requirements of s.424AA(b), the consequence is not that it falls into jurisdictional error. The consequence is that s.424A(2A) is not engaged; SZMCD at [68]. This is in light of the Explanatory Memorandum.
It is a fact the decision in SZLWI is a decision on appeal from the Federal Magistrates Court and it is binding on this Court. In any event, this issue has been dealt with by other Judges of the Federal Court in other appeals from decisions of this Court. In SZITH v Minister for Immigration & Citizenship it was held at [59]:
I would not regard s.424AA of the Act as raising any separate requirement or obligation upon a Tribunal to orally give ... particulars.
At [60]:
The appellant did not suggest that s.424A would be engaged to make it a mandatory requirement to give particulars in writing, presumably because of the operation of s.424A(3)(b). S.424AA simply empowers a Tribunal to orally state to an applicant clear particulars where an applicant appears before a Tribunal. If a Tribunal exercises this power this may have consequences for the operation of s.424A if there was otherwise a mandatory requirement to give particulars in writing. Of course, if a Tribunal chooses to orally state clear particulars, then it must follow the specific procedure set out in s.424AA(b).
Similar conclusions have been reached in SZMAE v Minister for Immigration & Citizenship at [23] and SZLML v Minister for Immigration & Citizenship at [10] and [11]. It follows that the first ground in the amended application must fail. There is no breach of s.424AA and even if there was, that would not be jurisdictional error. In any event, it is clear from the Tribunal decision record that the Tribunal attempted to follow the requirements of s.424AA of the Act and the applicant did not seek any adjournment to reply or respond in writing. The first ground must fail.
The second ground alleges a breach of s.425 of the Migration Act by failing to afford procedural fairness. The applicant was invited to attend a hearing and gave evidence with the assistance of an interpreter in the Mandarin language. Certain matters were discussed with him relating to his claim to have travelled to Tibet. Contradictory information from independent country information was discussed with the applicant and it is difficult in my view to see how a failure of procedural fairness can be made out. The issue arose squarely out of the applicant's evidence and it was a challenge to factual matters in the applicant's evidence based on independent country information. There is no evidence of a failure to provide to the applicant a sufficient oral explanation which was reasonably necessary to enable the applicant to understand the independent information and its significance for the decision under review. The applicant I note has not provided a transcript of the hearing. In any event, that failure to provide sufficient oral explanation asserted by the applicant does not to my mind amount to jurisdictional error.
The applicant also claims in particular 2(e) that the Tribunal did not give to him a sufficient opportunity to give evidence or make submissions relating to the independent information and its significance to the decision under review. This does not appear to be borne out by the Tribunal decision record. I have quoted previously at length from the Tribunal's summary of the evidence at pages 121 and 122 of the Court Book where the Tribunal discussed these issues with the applicant and made clear to him why those issues may lead to a finding that was not favourable to him. The applicant did not seek additional time to make submissions and there is nothing in the decision record to show that the applicant was not given the opportunity to give evidence at the hearing about those issues. I am satisfied that no jurisdictional error by way of a failure to provide procedural fairness in the sense of a breach of s.425 has been made out and that ground must fail.
Dealing briefly with the issues raised by the applicant in his oral submission, the applicant claimed that the Tribunal misunderstood matters about the Underground Church in China. This appears to some extent to be an attempt to cavil at the Tribunal's factual findings. It is the case that the Tribunal dealt with the applicant's knowledge of the basics of Christianity and was satisfied from the applicant's evidence that he did not have a knowledge of Christianity. This was a factual finding open to the Tribunal and no jurisdictional error had been made out.
The applicant has put to the Court that he was nervous at the Tribunal hearing. He may well have been. It would hardly be surprising that an applicant for a protection visa when attending a hearing of the Refugee Review Tribunal or indeed a hearing of the Federal Magistrates Court would experience some nervousness. However, nothing has been led to show that the applicant was so overcome by nervousness or anxiety that he was not able to present his case. The Tribunal decision record clearly demonstrates otherwise. No jurisdictional error has been made out.
The applicant claims that the Tribunal made its decision based on Chinese web sites, official government propaganda and matters which would be critical of the Underground Church. The basic reason for the Tribunal to make the findings that it did was that it was not satisfied from the applicant's evidence that he had established an entitlement to a visa. The Tribunal did refer to independent information which, as set out in the decision report, appears to be largely uncontroversial and discussed this independent information with the applicant at the hearing, particularly where it tended to contradict the applicant's evidence. This does not make out a jurisdictional error.
As to any claim that the Tribunal did not carry out its function by considering prospective harm to the applicant if he were to return to China, a perusal of the Tribunal decision record at para.63 on page 131 of the Court Book and 64 on page 132 of the Court Book shows that the Tribunal did consider the question of prospective harm and indeed persecution if the applicant were to return to China. The Tribunal said at 64:
It follows that the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for one or more of the Convention reasons now or in the reasonably foreseeable future if he returns to China. The Tribunal is not satisfied that the applicant is a refugee[12].
Accordingly, this claim does not amount to jurisdictional error.
[12] See Court Book at page 132
The applicant's claims have not been made out. I am mindful of the fact that the applicant has not been legally represented in these proceedings even though he was fortunate enough to have the assistance of counsel to prepare an amended application for him under the RRT Legal Advice Panel scheme. My independent reading of the Tribunal decision and supporting documents does not disclose any arguable case for jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. As such, it is not subject to orders in the nature of certiorari, mandamus or prohibition. It follows that the application must be dismissed.
I am satisfied that as the applicant has not been successful in his claim it is an appropriate case to make an order for costs. The amount sought is $3800 and I imagine that is inclusive of counsel's fees. It is a sum well within the scale provided by the Federal Magistrates Court Rules. It is appropriate to make that order.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 18 March 2009
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