SZNER & Anor v Minister for Immigration & Anor (No.2)
[2009] FMCA 807
•27 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNER & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 807 |
| MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizens of China claiming fear of persecution on the ground of religious belief – underground Christian church – credibility issues – where application claimed a failure to comply with the requirements of Migration Act 1958 (Cth) s.499 – no relevance to application to judicial review – Tribunal’s acknowledgement of review application – advice to send information to the Tribunal immediately – not an invitation ‘to give additional information’ within Migration Act 1958 (Cth) s.424(2) – no jurisdictional error. PRACTICE & PROCEDURE – Adjournment – application for adjournment refused – no evidence of any injury to the first applicant – second applicant attended Court – where applicant claimed to have no telephone – where first applicant given leave to file a written outline of submissions – where no submission filed. |
| Migration Act 1958 (Cth), ss.36, 424, 424A, 424AA, 424B, 424C, 425, 425A, 426A, 441A, 476, 496, 499 Federal Magistrates Court Rules r.13.03C(1)(e) |
| SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451; [2008] FCAFC 105 SZNAV v Minister for Immigration & Anor [2009] FMCA 693 SZNJT v Minister for Immigration & Anor [2009] FMCA 730 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2004] HCA 1 W148/00A v Minister for Immigration and Multicultural Affairs (201) 185 ALR 703; [2001] FCA 679 SZBEL v Minister for Immigration and Indigenous Affairs (2006) 231 ALR 592; 81 ALJR 515; [2006] HCA 63 SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693 SZNJT v Minister for Immigration & Anor [2009] FMCA 730 SZNLC v Minister for Immigration & Anor [2009] FMCA 749 SZNPQ v Minister for Immigration & Anor [2009] FMCA 767 SZNHU v Minister for Immigration & Anor (No 3) [2009] FMCA 777 SZNPH v Minister for Immigration & Anor [2009] FMCA 788 WZANN v Minister for Immigration & Anor (No.2) [2009] FMCA 802 SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 |
| First Applicant: | SZNER |
| Second Applicant: | SZNES |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 196 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 August 2009 |
| Date of Last Submission: | 5 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2009 |
REPRESENTATION
| Applicants: | The Second Applicant appeared in person. The First Applicant did not appear |
| Solicitors for the Applicants: | No solicitor on the record |
| Counsel for the Respondents: | Mrs Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 196 of 2009
| SZNER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicants, who are citizens of China, have applied to the Court under s.476 of the Migration Act 1958 for review of a decision of the Refugee Review Tribunal made on 24th December 2008. The Tribunal affirmed the decisions of a delegate of the Minister for Immigration and Citizenship not to grant the Applicants Protection (Class XA) visas.
In their application which was filed on 27th January 2009 the Applicants seek these orders:
i)An order in the nature of certiorari setting aside the Tribunal decision;
ii)An order in the nature of mandamus remitting the matter to the Tribunal for determination according to law;
iii)A declaration that the Tribunal decision is invalid and of no effect;
iv)Costs; and
v)Such other orders as the Court sees fit.
Background
The Applicants, who are husband and wife, arrived in Australia on 17th June 2008 and applied for Protection (Class XA) visas on 27th June. They are both Part C Applicants who have submitted their own claims to be refugees.
The wife, who is the First Applicant in these proceedings, claims a fear of persecution on the ground of her religion, as she states that she is a member of an underground Christian church.[1] The husband claims to have been arrested and imprisoned from January 1997 to January 2000 as a result of being charged with a “groundless crime – Intent Harm”. After he was released he followed his wife into the Christian religion and he, too, became a member of the underground church.[2]
[1] Court Book 18-19
[2] Court Book 33-35
The Applicants were invited to attend an interview with an officer of the Department of Immigration and Citizenship on 28th July 2008.[3] The husband forwarded a statement written in English and Latin translated from Chinese by one Xinhui Li:
During 6/01/1997 to 20/01/2000, I spent my life in prison. On 30th May, 1997; I was condemned of Purposely Harm Crime by Dalian Secondary Court, and I was also bereaved political right for 5 years. My case is unjust and false charge. The arrest was coerced by the police and the crime was judged in the same condition.
It’s on 4th of January 1997; I was having a drink with one old classmate in a restaurant. My class mate was involved in an argument, he was harmed by others. Soon he ran and the police arrested me even I didn’t join the fight. They tortured me cruelly and forced me to peccavi[4].
…At the end of year 2006, I gave my heart to Jesus. The reason is that my sister in law couldn’t walk for very long, after some Christian and my mother in law prayed for her, she walked again. So I believe there is a God.[5]
[3] Court Book 46
[4] Peccavi – Latin for “I have sinned”, used in the sense of a confession
[5] Court Book 47
The Applicant wife submitted a statement to the Department with the assistance of the Refugee Advice and Casework Service. She claimed in her statement that she feared persecution because she converted to Christianity in 2006 and attends an underground church. She claimed that she and her husband have attended church services in Hurstville, New South Wales, since they arrived in Australia.[6]
[6] Court Book 48-54
The Applicants attended the interview.
The delegate of the Minister refused the applications for protection visas on 18th August 2008. The delegate expressed concern about whether the Applicants were genuine followers of the Christian faith, saying:
When questioned about their Christian beliefs and their religious activities in China, I found some of their responses were either unconvincing because they were too vague or some of their responses were inaccurate…
…I do not accept as plausible that the applicants were of interest to the Chinese authorities on account of their religion prior to their departure from China. I also do not accept that the Chinese authorities are now searching for the applicants and they are on a “wanted list”.[7]
[7] Court Book 72
After their applications were refused, the Applicants applied to the Refugee Review Tribunal for review of the delegate’s decision.
Application to the Refugee Review Tribunal
The Tribunal received an application for review from the Applicants on 10th September 2008.[8] The Applicants provided a copy of the delegate’s decision but no other documents with their application.
[8] Court Book 75-78
On 11th September 2008 the Tribunal wrote to the Applicants, acknowledging receipt of their application for review. Under the heading “What does the Tribunal expect me to do?” the letter said (inter alia):
You should:
· Immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English should be translated by a qualified translator.[9]
[9] Court book 80
The Applicants do not appear to have forwarded any documents to the Tribunal in response to that letter. On 17th October 2008 the Tribunal again wrote to the Applicants, inviting them to attend a hearing scheduled to take place on 14th November 2008.[10]
[10] Court Book 81
The Tribunal also wrote to the Applicants on 17th October, inviting them to comment on or respond to certain information in writing. The letter was clearly intended to comply with s.424A of the Migration Act and asked the Applicants to provide their comments or response in writing by 11th November 2008.[11] They do not appear to have done so.
[11] Court Book 83-85
The two Applicants attended the hearing on 14th November 2008. They both gave evidence with the assistance of a Mandarin interpreter.[12] They also provided a number of photographs to the Tribunal, as well copies of their passports.
[12] Court Book 86
The Tribunal wrote to the Applicants on 28th November 2008. Again, the letter invited the Applicants to comment or respond to information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. It was clearly intended to comply with the requirements of s.424A of the Act. The Tribunal’s letter asked the Applicants to provide their written comments or response by 23rd December 2008.[13]
[13] Court Book 101-103
This time, the Applicant wife responded. She forwarded a typed statement translated from Chinese into English to the Tribunal on 16th December 2008.[14]
[14] Court Book 105-107
The Tribunal made its decision on 24th December 2008, affirming the decisions not to grant the applicants Protection (Class XA) visas.
The Refugee Review Tribunal Decision
In its Decision Record, under the heading “Claims and Evidence”, the Tribunal set out the following:
a)The statement made by the Applicant wife in her application for a protection visa;
b)The statement made by the Applicant husband in his application for a protection visa;
c)The wife’s further statement to the delegate;
d)The husband’s further statement to the delegate;
e)The Applicants’ evidence at the interview with the delegate;
f)The photographs provided to the Tribunal by the Applicant wife;
g)The evidence of the Applicant wife at the Tribunal hearing;
h)The evidence of the Applicant husband at the Tribunal hearing; and;
i)The Applicants’ replies to the s.424A letter on 16th December 2008.[15]
[15] Court Book 113-134
The Tribunal also referred to Independent Country Information about:
a)Christianity in China;[16] and
b)Departure from China.[17]
[16] Court Book 134-136
[17] Court Book 136
In its Findings and Reasons, the Tribunal accepted that the Applicants are nationals of China, based on the fact that they had travelled on Chinese passports and had claimed to be Chinese nationals.
However, the Tribunal did not accept that the Applicants were credible witnesses:
The Tribunal found both applicants to be untruthful in their evidence. They were able to state the information which was contained in their statements but had difficulties with the information that was not contained in their statements. There were significant inconsistencies between their oral and written evidence. There were also inconsistencies between the applicants’ oral evidence.[18]
[18] Court Book 137
The Tribunal then set out, in some detail, what it considered to be the inconsistencies in the wife’s evidence. The Tribunal then considered the evidence of the Applicant husband, who had advanced his own claims to be a refugee. The Tribunal stated:
The Tribunal found the evidence of the applicant husband to be lacking in credibility and there were a number of deficiencies in his evidence, as set out below.[19]
[19] Court Book 142
The Tribunal then set out the matters in the husband’s evidence that it found to be deficient or inconsistent.
The Tribunal rejected the claims of both Applicants on the basis of their lack of credibility. It also disregarded their conduct of attending church and engaging in other religious activities in Australia, as it was not satisfied in either case that they had engaged in this conduct otherwise than for the purposes of strengthening their refugee claims. The Tribunal disregarded this conduct in accordance with s.91R(3) of the Act.[20]
[20] Court Book 141 at [116] and 144 at [124].
the Tribunal also considered the claim of the Applicant husband arising out of his past criminal conviction:
The applicant husband argues that he has a past criminal conviction and that there is lawlessness, corruption, false persecutions[21] and general lack of human rights in China. The Tribunal finds these claims to be vague and generalised. Any concerns that he may have with the protection of human rights, lawlessness, general corruption or China’s judicial system do not, on their own, give rise to a well-founded fear of persecution for a Convention reason.[22]
[21] Sic
[22] Court Book 145 at [128]
The Tribunal was not satisfied that the Applicants were persons to whom Australia has protection obligations under the Refugees Convention and they therefore did not satisfy the criterion set out in s.36(2)(a) of the Act.
Application to the Federal Magistrates Court
The Applicants filed their application and affidavit in support annexing a copy of the Tribunal decision on 28th January 2009. They have not filed any amended application or written outline of submissions.
The application was listed for final hearing on 5th August 2009. Only the Second Applicant, the husband, appeared. He was unrepresented and spoke with the assistance of a Mandarin interpreter.
The Second Applicant told the Court that he was applying for an adjournment of the hearing. He said his wife was “crippled”, having injured her leg on 16th July. She had not seen a doctor or visited a hospital because he said that they did not have any money. He said, however, that he knew that injuries of that type took 100 days to recover. He produced no evidence of his wife’s injury. He said he had no authority from her to present her case.
The lawyers for the Minister opposed the granting of an adjournment. Counsel for the Minister told the Court that the first they knew of the request for an adjournment was when they arrived at Court for the hearing. In the light of the lack of evidence of the wife’s injury, I refused the adjournment.
When asked if his wife was available by telephone, the Second Applicant said that they had no landline telephone or mobile telephone. I indicated that the hearing would proceed in the First Applicant’s absence. The Court has power to proceed with a hearing generally in the absence of a party under Rule 13.03C (1)(e). In any event, the Second Applicant was present, even though he claimed not to have any authority to speak on his wife’s behalf.
The Applicants seek orders in the nature of certiorari and mandamus and a declaration that the Tribunal decision is invalid and of no effect.
They rely on this ground of review:
The Tribunal failed to exercise its jurisdiction in that it failed to give the applicant(s) credibility based on information provided by or regarding the applicant(s) and failed to comply with the requirements of section 499(41) of the Migration Act.
The reference to s.499(41) of the Migration Act is clearly an error. Section 499 of the Act does not have a subsection 41. It is a section which empowers the Minister for Immigration and Citizenship to give written directions to a person or body having functions or powers under the Act if the directions are about:
a)The performance of those functions; or
b)The exercise of those functions.
The Applicant was unable to explain how the section was relevant to the application before the Court. Clearly, s.499 of the Act has no relevance to applications for judicial review of a migration decision.
When asked if he wished to make an oral submission, the Second Applicant said that he and his wife were not happy with the Tribunal decision. He felt that the decision was not right. At the Tribunal hearing there was a female interpreter who did not interpret the questions.
He said that they saw the legal adviser provided under the Refugee Review Tribunal legal advice panel scheme and received advice from him. They did not have the money to obtain a transcript of the Tribunal hearing.
The Applicant had nothing further to add. In the circumstances, at the conclusion of the hearing, I made the following orders:
i)The First Applicant is granted leave to file a written submission and serve a copy of that submission on the First Respondent within 14 days.
ii)The First Respondent is granted leave to file and serve a submission in reply within a further period of 7 days.
The 14 day period allowed to the First Applicant by the Court expired on 19th August 2009. No written submission has been received.
The Minister’s Submissions
Counsel for the Minister submitted that, if the reference to s.499(41) in the Applicants’ first ground was intended to be a reference to s.499(4) of the Act, that subsection was entirely irrelevant to the jurisdiction of the Tribunal’s decision-making processes. That submission is correct, as s.499(4) states:
(4) Subsection (1) does not limit subsection 496(1A).
Further, it is submitted that if the statutory reference was intended to be any of ss.424A, 424AA or 425, there is nothing arising from the Tribunal’s decision that gives rise to a jurisdictional error in respect of any of those provisions. Further, the Tribunal’s application of s.91R(3) was not only valid, it was mandated by the Tribunal’s factual finding as to purpose (SZJGV v Minister for Immigration and Citizenship[23] at 463).
[23] (2008) 247 ALR 451; [2008] FCAFC 105
In summary, counsel for the Minister, Mrs Sirtes, submitted that the Applicants’ ground of review was largely incomprehensible and was entirely without basis.
In an oral submission, it was put that:
a)The claim of inadequate interpretation was made by the Second Applicant for the first time at the hearing and there was no evidence to support that claim; and
b)The Tribunal’s acknowledgement letter sent on 11th September 2008 was not sent under the provisions of s.424 of the Migration Act and thus did not contravene s.424B(2).
In respect of that latter submission, the Minister submits that the Court should not follow SZNAV v Minister for Immigration & Anor[24] but should follow the decision of Smith FM in SZNJT v Minister for Immigration & Anor[25].
[24] [2009] FMCA 693
[25] [2009] FMCA 730
Conclusions
The Applicants claim that the Tribunal “failed to exercise its jurisdiction in that it failed to give the applicant credibility based on information provided by or regarding the applicant”. If that ground is a challenge to the Tribunal’s findings that the Applicants were not witnesses of truth, the answer to that claim is that credibility is a matter for the administrative decision-maker (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[26] per McHugh J at [67]).
[26] (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1
In W148/00A v Minister for Immigration and Multicultural Affairs[27] Tamberlin and R.D. Nicholson JJ held at [64]:
a finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.
[27] (2001) 185 ALR 703; [2001] FCA 679
The Second Applicant has complained in oral submissions about the standard of the interpreter at the hearing. This claim was not made at any time until the day of the hearing. There is no evidence in support of that claim. The Applicants have provided no affidavit or transcript of the Tribunal hearing. There is nothing in the Tribunal Decision Record to show that the Applicants had any difficulty in understanding the questions at the hearing.
The Applicants’ ground of review has not been made out.
Considering whether any section contained in Division 4 of Part 7 of the Migration Act has been breached, the Tribunal wrote two letters to the Applicants under the provisions of s.424A of the Migration Act. One was dated 17th October 2008[28] and the other was dated 28th November 2008, after the Tribunal hearing.[29] The Applicants did not reply to the first letter but the First Applicant provided a written statement in reply to the second letter.[30] The Tribunal took that statement into account.[31]
[28] Court Book 83-85
[29] Court Book 101-104
[30] Court Book 105-107
[31] Court Book 133-134 at [99]-[103], 137 at [113]
There is no breach of s.424A of the Migration Act.
The Tribunal invited the Applicants to attend a hearing to take place at 9:00am on 14th November 2008 at the Tribunal’s premises at 83 Clarence Street, Sydney. The invitation complied with the requirements of s.425A of the Act in that it:
a)Gave notice of the day on which, and the time and place at which, the Applicants were scheduled to appear;
b)Was sent to the Applicants’ address for correspondence by prepaid post, which is one of the methods prescribed by s.441A;
c)Gave a period of notice which was greater than the prescribed period; and
d)Contained a statement of the effect of s.426A, in that it said:
Please note that the Tribunal may make a decision without further notice, if an applicant invited to appear before the Tribunal fails to attend the scheduled hearing.[32]
[32] Court Book 81
The Applicants were provided with the services of a Mandarin interpreter at the hearing. I have already held that there is no evidence that the interpreter was not up to the required standard. I note from the Tribunal Hearing Record that there were two interpreters at the Tribunal hearing, both of whom were qualified at NAATI Level 3.[33]
[33] Court book 86
The delegate had rejected the Applicants’ claims for protection visas on the basis of their lack of credibility. It was the Tribunal’s conclusion that the applicants were untruthful in their evidence that led it to reject their claims. I am satisfied that the Applicants were aware, or should have been aware, that the credibility of their refugee claims was in issue. Thus, the issues that the delegate considered dispositive were the arising in relation to the decision under review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[34] at [35]).
[34] (2006) 231 ALR 592; 81 ALJR 515; [2006] HCA 63
There is no breach of s.425 of the Act.
The other issue to consider is whether the Tribunal’s acknowledgement letter to the Applicants constituted a request for information under s.424(2) of the Act and thereby a jurisdictional error under s.424B(2), as has been held in SZNAV & Ors v Minister for Immigration & Citizenship & Anor[35]. The weight of authority from this Court is that SZNAV, with respect, does not represent the law and that the preferable approach is that set out by Smith FM in SZNJT v Minister for Immigration & Anor[36] (see also SZNLC v Minister for Immigration & Anor[37] ; SZNPQ v Minister for Immigration & Anor[38]; SZNHU v Minister for Immigration & Anor (No 3)[39]; SZNPH v Minister for Immigration & Anor[40]; and WZANN v Minister for Immigration & Anor (No 2)[41]).
[35] [2009] FMCA 693
[36] [2009] FMCA 730
[37] [2009] FMCA 749
[38] [2009] FMCA 767
[39] [2009] FMCA 777
[40] [2009] FMCA 788
[41] [2009] FMCA 802
The Tribunal’s letter of acknowledgement did not constitute an invitation to give additional information within s.424(2) of the Act.
Even if it were, I am satisfied that there would be no jurisdictional error, as I am satisfied that failing to specify the prescribed time for provide that information is not a jurisdictional error. In SZLWQ v Minister for Immigration and Citizenship[42], Buchanan J held at [52]:
Section 424B(2) on its face directs that ‘information or comments are to be given within a period specified in the invitation’. It does not, in terms, impose a direct obligation on the RRT about the terms of the invitation (cf s.424B(1) – ‘the invitation is to specify…’). The consequence of any failure to specify a period is that the facility in s.424C of proceeding to a decision in the absence of the information might not be available but I do not see s.424B(2) as establishing the kind of obligation on the RRT which could lead to either statutory breach or jurisdictional error.
[42] [2008] FCA 1406
In my view, this decision, being a decision on an appeal from this Court, is binding. With respect, I do not see how it can be distinguished from the matter under review. It follows that there is no jurisdictional error by way of any breach of s.424B.
An administrative decision which involves jurisdictional error is regarded, in law, as no decision at all:
Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limits or restraints”, [43] the decision in question cannot properly be described in the terms used in s.474(2) as “a decision…made under this Act” and is, thus, not a “privative clause decision” as defined in s.474(2) and (3) of the Act (Plaintiff S157/2002 v Commonwealth[44] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76]).
[43] Footnotes deleted
[44] (2003) 211 CLR 476; [2003] HCA 2
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision and, as such, is final and conclusive and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s.474(1)).
As the Tribunal decision is a privative clause decision, it follows that the application must be dismissed.
The Court will hear submissions as to costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 24 August 2009
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