SZNGY v Minister for Immigration

[2009] FMCA 1212

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNGY v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1212

MIGRATION – Review of RRT decision – applicant a citizen of China – whether applicant informed of information which would be the reason for affirming the decision – duty to inquire considered.

Migration Act 1958 (Cth) ss.424A, 424AA

SZMCD v Minister for Immigration [2009] FCAFC 46
SZBYR v Minister for Immigration (2007) 235 ALR 609
Minister for Immigration v SZIAI [2009] HCA 39
SZATG v Ministerfor Immigration [2004] FCA 1595
SZBEL v Minister for Immigration [2006] HCA 63

Applicant: SZNGY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 456 of 2009

Judgment of: Raphael FM

Hearing date: 26 November 2009

Date of Last Submission: 26 November 2009

Delivered at: Sydney

Delivered on: 26 November 2009

REPRESENTATION

For the Applicant: In person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 456 of 2009

SZNGY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia on 11 July 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 14 July 2008.  He attended an interview with the Department on 29 August 2008 and on 22 September 2008 the delegate refused to grant the protection visa.  On 17 October 2008 the applicant applied for a review of that decision from the Refugee Review Tribunal.  The applicant attended a hearing before the Tribunal which, on 28 January 2009, determined to affirm the decision under review and handed that decision down the same day. 

2. The circumstances in which the applicant claimed to be a person to whom Australia owed protection obligations were revealed, firstly, in his protection visa application.  He tells that in 1992 his father was running a petrol station in Anhui Province.  It would appear that from time to time police and other officials would go into the petrol station and have their cars filled up and not pay for the petrol.  The applicant believed that his father was taken by these officials to be an “easy mark”.  On this particular occasion the father decided that enough was enough and he locked the petrol station and refused to allow the police to leave until they had paid.  Eventually they did so.  But this resulted in severe repercussions for the father, who became the subject of false accusations and was apparently taken to prison for a life term, later reduced to approximately 15 years. 

3. While the father was in prison the applicant had to live nearby, although the family came from another area.  The applicant had to go out to work in order to find money to bribe the guards to provide the father with an easier time in prison.  In August 2007 the father was finally released from gaol but he was still the subject of disciplinary action by the local police.  This included requiring him to work on what appears to be labour gangs of some sort.  On one occasion the father was not well and the applicant managed to get himself placed into the labour gang in place of his father.  

4. However, whilst there, he came into conflict with the guards and was beaten up very badly, requiring him to be sent to a hospital for a period of time.  After his release the applicant contacted a solicitor, Mr L.  Mr L agreed that he would take the applicant’s case against the police and also take up his father’s claim that he had been wrongly imprisoned.  When the police got wind of what lawyer L was doing they detained the applicant for about 10 days and they also placed lawyer L into detention.  The applicant was released, but apparently lawyer L was not.

5. The applicant says that he began to make arrangements to leave for Australia.  Before he did so, he had a number of pamphlets printed in which he complained about the actions of the police.  He had those distributed and believed that after he had left it had been discovered that he was behind these pamphlets and that he was now wanted by the police for this anti-government activity. 

6. The story that the applicant gave, and which I have set out above in précis form, did not differ substantially between the PVA, the interview with the delegate and the Tribunal.  But at the Tribunal the applicant produced for the first time a document which was called a Certificate of Release from prison and which related to his father.  There were discrepancies in that document as to the date of the father’s release from imprisonment compared with what the applicant had said.  And the production of this document so late and never previously, together with its discrepancies, began the process of the Tribunal’s eventual decision that the applicant was not a witness of truth.  The Tribunal had other grounds for saying this, including its finding of implausibility of the time that the applicant stayed in hospital after his injuries and some other inconsistencies in dates, which are set out in more detail in [53] [CB 88].

7. The findings which the Tribunal made [CB 86-89] about the applicant’s credibility were all put to the applicant during the course of the hearing.  And it would appear that the Tribunal explained to the applicant the effect of these inconsistencies; 

   “The Tribunal said that when it put all of these inconsistencies in the applicant’s evidence together with the problems of the document it was having difficulty believing the applicant’s claims.  The applicant asked why that should be.  The Tribunal explained that there were inconsistencies in the applicant’s evidence that it would not expect there to be.  The Tribunal noted that it had already outlined its concerns about the document the applicant had submitted, the Certificate of Release from prison. 

   Altogether it was leading the Tribunal to doubt the applicant’s credibility, to doubt his claims.  The applicant said why would he come all this way from China to a place where he does not speak English leaving his father without a son and his wife and children without him?  When asked whether there was anything further the applicant wished to add he said that because of the pressures and tough experiences from when he was young he cannot remember things well.  He said a teenager had to go through many experiences and it had been several months since he had lost contact with his family.  He said he can’t really remember dates.” [43] [CB 86]

8. The Tribunal comprehensively rejected all the evidence of the applicant,         including the evidence that he had distributed anti-government pamphlets.  They did this on the basis of its findings of credibility.  On 26 February 2009 the applicant filed an application for review in this Court.  The first ground of that application is:

   “The applicant failed to comply with its obligations under section 424A or 424AA of the Act.”

   As Mr Markus says in his helpful written submissions, the lengthy particulars attached to that ground identify the relevant information as:

   a)The applicant’s failure to provide or even to flag the existence of the certificate of release until the hearing;

   b)The dates given in the certificate, which were inconsistent with other claims made by the applicant;

   c)The inconsistencies in the residential, education and employment history provided in the applicant’s PVA and at the hearing;

   d)The inconsistent period of hospitalisation claimed in the PVA (15 days), and at the hearing (10 days), and the implausibility of such lengthy period of hospitalisation being required for the injuries claimed.

9. It is now clear that s.424AA is no more than a method by which the Tribunal can comply with its obligations under s.424A; SZMCD v Minister for Immigration [2009] FCAFC 46 [2, 74 - 107]. So one must look at whether or not the Tribunal was required to comply with s.424A in respect of these matters and whether, if it was so required, it did do so. The fact is that it was not so required. The certificate of release was a document produced by the applicant, and information provided by an applicant is excluded from the provisions of s.424A by subs.424A(3)(b). This will cover the two grounds of complaint relating to the document. The other inconsistencies are not “information”. They constitute findings by the Tribunal and come from information that the applicant has given during the hearing itself, thus being excluded by virtue of the provisions of s.424A(3)(ba). The High Court has said authoritatively in SZBYR v Minister for Immigration (2007) 235 ALR 609 that the word “information” does not apply to the existence of doubts, inconsistencies or absence of evidence. 

10. The second ground of application is that:

    “The Tribunal failed to take genuine attempt to consider my claim fairly, properly and independently.”

    This ground is also particularised by reference to the certificate of release and a claim is made that the Tribunal should have made inquiries about that document if it was not satisfied about its genuineness.

11. The High Court has recently opined in regard to the so called obligation to inquire in Minister for Immigration v SZIAI [2009] HCA 39 at [25 - 26].  The High Court left open the possibility that there was, within the duty to review, an obligation to make an obvious inquiry about a critical fact, the existence of which is easily ascertained.  But having a document verified is a long way from that situation, apart from the fact that it would be difficult to know how the document could be verified without revealing the name of the applicant.

12. The law in relation to authenticity of documents does not seem to have moved from that declared by Hely J in SZATG v Ministerfor Immigration [2004] FCA 1595 at [22]:

    “Section 427 (1)(d) of the Act empowers the RRT to require the Secretary to arrange for any investigation that the RRT thinks necessary with respect to the review, and to give the RRT a report on that investigation.  However, section 427 confers a power on the RRT, but does not impose a duty or obligation on the RRT to exercise that power.  Minister for Immigration v SGLB [2004] 78 ALJR 992 at [43] per Gummow and Hayne JJ.”

13. The applicant appeared before me today.  He told me that he felt that the Tribunal did not give him a fair chance and it drew its conclusions by taking into account why he had not provided the document previously, and why the date of birth was wrong, without giving him an opportunity to comment.  Having listened to the applicant it seemed to me that what he was trying to articulate was a claim that the Tribunal should provide him with a running commentary of its views upon his evidence.  This type of activity on the part of the Tribunal was categorically ruled out in SZBEL v Minister for Immigration [2006] HCA 63, where the Court, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, said at [48];

    “…as Lord Diplock said in F Hoffmann-La Roche v Co AG v Secretary of State for Trade and Industry The rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision.  If this were a rule of natural justice, only the most talkative of judges would satisfy it, and trial by jury would have to be abolished. Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.  On the contrary, to adopt such a course would be likely to run the serious risk of conveying an impression of prejudgment.”

14. The story told by the applicant in his PVA and thereafter was unusual in the extreme.  It may well have encouraged another delegate or Tribunal member to accept the applicant’s claims to be a refugee.  However, a decision on that matter is not one for the Court to make; it is for the Tribunal.  The Tribunal considered all the evidence and came to the conclusion which it did based upon its views as to the applicant’s credibility.  This is a matter for the Tribunal par excellence. 

15. I am therefore unable to say that the Tribunal fell into jurisdictional error in the manner in which it reached this decision.  I dismiss the application. The applicant is to pay the first respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  8 December 2009