SZNIA v Minister for Immigration
[2009] FMCA 794
•27 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNIA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 794 |
| MIGRATION – Visa – Protection (Class XA) visa – application for review of decision of the Refugee Review Tribunal – citizen of China claiming fear of persecution on the ground of religion – claim of membership of a Christian church in China – credibility – similarity of claims with those of other applicants – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36, 91R, 91X, 422B, 423, 424AA, 424A, 424, 424B, 424C, 425, 425A, 426, 474, 476 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; 81 ALJR 515; [2006] HCA 63 SZMIS v Minister for Immigration and Citizenship [2009] FCA 167 SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 SZIAR v Minister for Immigration and Citizenship (2008) 220 FLR 232; [2008] FMCA 1348 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 SZNAV v Minister for Immigration & Anor [2009] FMCA 693 SZNPH v Minister for Immigration & Anor [2009] FMCA 788 |
| Applicant: | SZNIA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 664 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 June 2009 |
| Date of Last Submission: | 22 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitors on the record |
| Counsel for the Respondents: | Mrs Sirtes |
| Solicitors for the Respondents: | DLA Phillips Fox (Mr O'Brien) |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 664 of 2009
| SZNIA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application under the provisions of s.476 of the Migration Act 1958 for review of a decision of the Refugee Review Tribunal made in Melbourne. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
The Applicant, who is a citizen of China, seeks orders in the nature of certiorari and mandamus, setting aside the Tribunal’s decision and remitting her application to the Tribunal for determination according to law.
Background
The Applicant arrived in Australia on 7th September 2007 and applied for a Protection (Class XA) visa on 17th October 2007. For some reason that is not clear from the Court Book, the Department of Immigration and Citizenship, in a letter to the Applicant’s migration agent dated 25th March 2007 refers to the application having been lodged on “22 October 2007”[1] and this date is given in the Tribunal Decision Record.[2]
[1] Court Book at page 65
[2] Court Book 326 at [2]
The Applicant authorised a migration agent, Mr Pei Ling Zheng, of Swanston Street, Melbourne, to act for her and receive communications on her behalf.[3]
[3] Court Book 26
With her application, the Applicant provided a statement typed in Chinese and English setting out her claim for protection on the Convention ground of religion. In that statement, the Applicant claimed that:
·Her family was of a Buddhist background.
·Her sister-in-law developed a mental illness after her first child was born.
·A church elder came to the family’s home and told them about the Christian religion. After they went to church the Applicant’s sister-in-law recovered from her illness.
·The Applicant’s family all became Christians and participated in church meetings.
·The Applicant was introduced to the man who became her husband. He was from a Buddhist family but they all became Christians, too.
·The Applicant’s family did not attend the Three Self patriotic Association, which was under the control of the Chinese Communist Party, preferring to remain with their own church.
·On 12th March 2006 the Applicant was distributing materials promoting Christianity when some police officers arrested her. She was taken to Chengguan police Station and then to the Fuqing Public Security Bureau. She claimed to have been ‘kicked and punctured” very badly.
·The Applicant remained at the Detention Centre for 15 days.
·On 10th September 2006 the Applicant was attending a family meting with other church members when they were surrounded by officers of the Public Security Bureau, who arrested them. They were detained at the Fuqing Public Security Bureau, where the Applicant was beaten.
·The Applicant was held at the Fuqing Public Security bureau for 15 days. When she was released she had to pay the sum of $1,000.00 to the PSB for her expenses.
·After her release the Applicant was visited regularly at her home by officers from the Public Security Bureau.
·The Applicant’s daughters and sons who were studying in Australia invited her to visit them. She obtained a visa on 20th August 2007.
·The Applicant arrived in Melbourne on 7th September 2007 and began to attend churches in Melbourne.
·The Applicant will always participate in local underground church activities if she returns to China and fears persecution by the Chinese Communist authorities.[4]
[4] Court Book 27-34
An officer of the Department of Immigration and Citizenship interviewed the Applicant over the telephone on 3rd march 2008, with the assistance of a Mandarin interpreter.[5]
[5] Court Book 78
The Department of Immigration and Citizenship wrote to the Applicant’s migration agent, Mr Zheng, on 25th March 2008. The letter said that the claims made by the Applicant “are very similar, and in some respects identical, to those made by over 90 other clients that have appointed you as their authorised recipient. These claims are also similar or identical to many other clients which you have previously represented or assisted. …The extent of the similarity of the claims is considered improbable and casts doubt on the credibility of (the applicant’s[6]) claims.”[7]
[6] The applicant’s name is not published to comply with s 91X of the Migration Act
[7] Court Book 65
The Applicant forwarded a statement to the Departmental officer (typed in English) dated 13th April 2008 claiming that many people had participated in underground church meetings and had been arrested. She asserted the truth of her claims. The Applicant stated that the letter had been prepared for her by her daughter.[8]
[8] Court Book 67-68
On 22nd May 2008 a delegate of the Minister refused the application for a protection visa. The delegate’s reasons were set out in the Protection (Class XA) Visa Decision Record. Under the heading Credibility Concerns the delegate stated;
I have serious concerns about the credibility of the applicant and the veracity of the claims that she has made, as follows:
The applicant’s claims are very similar, and in some respects identical, to those made by over 90 other clients who since September 2007 have nominated Pei Ling Zheng as their authorised recipient or migration agent for their protection visa applications. These claims are also similar or identical to many other clients who have previously nominated Pei Ling Zheng as their authorised recipient or migration agent for protection visa applications. The degree of similarity, which includes identical patterns of detention and release, the provision of identical detention and release documents and the confiscation of Recovery tapes, hymns, bibles and notes, is considered improbable and casts doubts on the credibility of the applicant’s claims.[9]
[9] Court Book 89
The delegate went on to state that protection visa applicants who had nominated Mr Zheng as their migration agent or authorised recipient all appeared to have experienced similar or identical patterns of detention and release. These documents and claims appeared “almost exclusively” in protection visa applications lodged by Mr Zheng’s clients.
The delegate stated:
The applicant provided uncertified photocopies of documents purporting to be issued by the Fuqing Public Security Bureau evidencing the claim that she has twice been detained by the authorities for involvement in illegal religious activity. The applicant was requested on 23 October 2007 and 3 March 2008 to provide original documents for examination however no documents were received in response to our requests.
The failure to provide original documents casts doubt in my mind on the authenticity of the copied documents provided.[10]
[10] Court Book 90
After her application for a protection visa was refused, the Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.
Application to the Refugee Review Tribunal
The Tribunal received the applicant’s application for review at its Melbourne Registry on 2nd June 2008. The Applicant nominated her agent, Mr Zheng, as her representative. Her application was accompanied by a three page typed statement.[11] The Applicant also provided some country information on Christianity in China[12] and a copy of a decision of the Refugee Review Tribunal dated 26th February 2008 about another applicant. In that decision the Tribunal had remitted the matter for reconsideration with the direction that the Applicant satisfied s.36(2)(a) of the Migration Act.[13]
[11] Court Book 195-197
[12] Court Book 198-240
[13] Court Book 241
The Tribunal wrote to the Applicant on 3rd June 2008, acknowledging receipt of the application for review. Under the heading “What does the Tribunal expect me to do?” the letter said (inter alia):
· 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.[14]
[14] Court Book 271
The Tribunal wrote again to the Applicant on 1st July 2008, inviting her to appear at a hearing on 12th August 2008. The Applicant does not appear to have forwarded any information to the Tribunal between 3rd June and 1st July 2008.
On 3rd July 2008 the Tribunal sent an email to an officer of the Department of Immigration and Citizenship, asking about the originals of the Applicant’s documents, and also about those of another applicant. The email said, relevantly:
In both cases, the applicants claim that they gave their original documents (regarding their arrests, items seized, release and medical certificates) to their agent Mr Pei Ling Zheng.
Mr Zheng’s premises were raided by DIAC (3/3/2008?) and all his files relating to shouters were seized. They claim that DIAC must have original documents in this case…the applicant claimed that even though DIAC says not on his file it must have been mixed up and be on someone else’s file that was also seized at the same time from Mr Zheng. I have a statement from Mr Zheng in this case…stating that the originals were on the file before it was seized by DIAC.
Could you find out if DIAC have checked all files seized in these raids to determine whether there is original documentation on any of Mr Zheng’s files? And whether it related to these two applicants?[15]
[15] Court Book 276
The Tribunal wrote to the Applicant on 4th July 2008 advising her that it was unable to provide an interpreter in the Fuqing dialect:
Although you have indicated that you require a Mandarin (Fuqingnese) interpreter, there is no accredited Fuqingnese interpreter available in Australia. In your protection visa application, you indicated that you are able to read, write and speak Mandarin. On this basis, the Tribunal has arranged a Mandarin interpreter for this hearing.[16]
[16] Court Book 289
The Tribunal hearing was rescheduled to 30th September 2008 due to the unavailability of the Tribunal Member on 12th August.[17] At the request of the Applicant’s migration agent, the time of the hearing was put back to the afternoon of that day.
[17] Court Book 294
The Applicant forwarded a Response to hearing Invitation dated 28/08/2008, advising that she wished to attend the hearing and would require an interpreter in the Mandarin language.[18]
[18] Court Book 301
The Tribunal wrote to the Manager, Investigations and Cancellations, of the Department of Immigration and Citizenship on 4th September 2008, seeking certain additional information about documents seized in a search warrant relating to a number of applicants, including the Applicant. The letter said that the information should be provided in writing by 18th September 2008.[19]
[19] Court Book 309-310
The Applicant’s migration agent provided a statement to the Tribunal on 26th September 2008, stating that he had made some errors in translating the Applicant’s statement. He set out the correct versions of two paragraphs.[20]
[20] Court Book 311
The Applicant attended the hearing of the Tribunal on 30th September 2008. She gave evidence with the assistance of a Mandarin interpreter.[21] The applicant produced a statement from The Church in Melbourne dated 27th July 2008, confirming that she had been meeting regularly in the Chinese speaking district of the Church in Melbourne.[22]
[21] Court Book 312-313
[22] Court Book 314
The Tribunal wrote to the Applicant on 19th December 2008, inviting her to comment on or respond to information in writing. This letter was clearly intended to comply with the requirements of s.424A of the Migration Act, as it set out particulars of information that the Tribunal considered would, subject to any comments or response that she made, be the reason or a part of the reason for affirming the decision under review. The information included parts of the Applicant’s statement accompanying her visa application and compared it with identical paragraphs from the statements of two other applicants. The letter also drew the Applicant’s attention to the fact that she claimed to be illiterate but had signed various documents in both English and Chinese. The Tribunal’s letter asked the Applicant to reply in writing by 16th January 2008.[23]
[23] Court Book 317-319
The Applicant replied to the Tribunal’s s.424A letter on 5th January 2009 in a two page statement typed in English and signed on each page in Chinese.[24]
[24] Court Book 321-322
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 23rd February 2009, affirming the decision not to grant the Applicant a Protection (Class XA) visa.
In its Decision Record , under the heading “Claims and Evidence”, the Tribunal set out a detailed summary of:
·The Applicant’s claims in the statement accompanying her protection visa application.
·Correspondence between the Department and the Applicant.
·The Applicant’s submission dated 1 June 2008.
·The Applicant’s evidence at the Tribunal hearing.
·The Tribunal’s s.424A letter of the 19th December 2008.
·The Applicant’s written response.[25]
[25] Court Book 328-335
In its Findings and Reasons, the Tribunal accepted that the Applicant was a national of the People’s Republic of China, based on her passport.[26]
[26] Court Book 336
The Tribunal made adverse findings about the Applicant’s religious knowledge, her credibility, her documents and the similarity of her claims with those of other applicants with the same migration agent.
As to her religious knowledge, the Tribunal said:
The applicant did not impress the Tribunal as someone with I depth religious knowledge or understanding. In all, the applicant did not demonstrate a depth of knowledge of the Bible or a commitment to her religion that was commensurate with attending church meetings every two or three times a week over an extensive period of time and engaging in proselytising.[27]
[27] Court Book 336 at [69]
The Tribunal formed an adverse view of the Applicant’s credibility, noting that she had claimed to be illiterate both in Chinese and in English but claimed to have worked in a middle management position in China. The Tribunal also referred to specific parts of the Applicant’s evidence where it appeared that the Applicant had forgotten her claim that she was illiterate. Similarly, the Tribunal noted that the Applicant’s response to the Tribunal’s s.424A letter claimed that she had prepared her statement in Chinese and then gave it to her representative who helped her with the English translation.
The Tribunal stated:
The Tribunal finds that the applicant has falsely claimed to be illiterate so that she could use this as an excuse wherever[28] she was asked questions she could not answer or to explain lack of knowledge or to explain the discrepancies in her evidence.[29]
[28] sic
[29] Court Book 337 at [72]
The Tribunal considered the documents that the Applicant had provided in relation to her claimed periods of detention. It noted that they were copies. The Tribunal said:
Despite being requested to do so the applicant has never provided the originals of these documents and had provided no explanation for being unable to produce the originals. As discussed with her they are virtually identical to the documents provided in 90 other cases. Due to this and the fact that she had not provided the originals the Tribunal places no weight on these documents.[30]
[30] Court Book 338 at [78]
The Tribunal went on to consider the marked similarity between the Applicant’s claims and those of other applicants. The Tribunal considered what significance was to be placed on these “coincidental commonalities”. It said:
The Tribunal must consider whether the applicant’s claim was a genuine claim. However in the applicant’s case, given the observations the Tribunal has already made regarding her manner of giving evidence and her inability to provide details of events that occurred to her and her tendency to answer questions in a rote manner, the Tribunal finds that the number of similar claims is a significant factor as it makes it more likely that her claims are not genuine. Further her explanation for the similarities is that it is an unexplained coincidence. It is implausible that these paragraphs in the applicant’s statement could be coincidentally identical to other applicants’ statements. One paragraph relating to her views was not just similar, they were word for word (character for character) the same.[31]
[31] Court Book 339 at [84]
The Tribunal accepted that the Applicant attended the Local Church in Australia. The Tribunal did not accept that her attendance at the church in Australia, even if it became known to the authorities in China, would result in any real chance that she would be persecuted for that reason on her return to China.
The Tribunal found:
The Tribunal does not accept that her conduct in Australia strengthens her claim to be refugee and therefore the Tribunal is satisfied that it was not done for this purpose and need not be disregarded under section 91R(3).
As to the Applicant’s future conduct, the Tribunal did not accept that the Applicant would attend the Local Church in China if she were to return to that country, because it was satisfied that she was not a member of the Local Church and was not committed to the faith.
Accordingly, the Tribunal did not accept that there was a real chance that the Applicant would be persecuted in the reasonably foreseeable future for reasons of her religion. It found her fear of persecution not to be well-founded and affirmed the decision not to grant her a Protection (Class XA) visa.
Application to the Federal Magistrates Court
The Applicant commenced proceedings for judicial review on 20th March 2009. She has not filed any amended application or any other document since her original application for review and her supporting affidavit.
The Minister’s lawyers filed a written outline of submissions on 16th June 2009.
In her application, the Applicant relies on these grounds of review:
a)Ground 1 – RRT did not make fair decision for me.
b)Ground 2 – Procedural fairness has been denied. RRT did not use favourable cases to my application. RRT failed to consider the risk for me to go back.
The Applicant attended Court on the hearing date and made oral submissions with the assistance of an interpreter in the Fuqing dialect.
When asked to explain why she claimed in her first ground that the Tribunal did not make a fair decision the Applicant said that the decision was not fair because she was really persecuted because of her religion but the Tribunal did not believe her.
When the Applicant was asked to explain why she claimed in her second ground that procedural fairness had been denied to her, the Applicant said that she was really persecuted in China. She had given reasons but the Tribunal did not believe her.
The Court noted that the Applicant still resided in the State of Victoria and asked why the Applicant had chosen to have her case heard in Melbourne rather than in Sydney. The Applicant told the Court that she did not feel that it would be “fair” for the case to be heard in Melbourne and said that she had friends in Sydney who would be able to prepare documents for her.
Whilst the Applicant’s explanation for bringing these proceedings in Sydney rather than at the Melbourne Registry of the Court is uninformative, the Court is a national court and if the Applicant chooses to go to the trouble and expense of having her case heard in Sydney that is entirely a matter for her. The Minister made no objection to the venue of the proceedings and did not seek an order transferring the matter to the Court’s Melbourne Registry.
I will place on record, however, that the Applicant has not provided any explanation whatsoever to support her claim that it would not be fair for her case to be heard in Melbourne. That said, it is a matter for her.
In her submissions, the Applicant reiterated her factual claims to have been persecuted in China because of her religion. She claimed that she was illiterate and had never been to school. She repeated her complaint that she had told the truth but the Tribunal had not believed her.
The First Respondent’s Submissions
Counsel for the First Respondent, the Minister for Immigration and Citizenship, submitted that both of the Applicants’ grounds of review should be dismissed.
Ground 1, Mrs Sirtes of Counsel submitted, was no more than a claim for merits review as all it does is express dissatisfaction with the Tribunal’s decision.
As to the Applicant’s Ground 2, it was submitted that the Applicant’s claim that the Tribunal failed to consider the risk to her on return to China was in fact considered by the Tribunal in its decision.[32]
[32] Court Book 340 at [87] and [88]
The Minister’s written submission refers to “the Applicant’s complaint regarding the use of evidence of other applicants’ identical claims”. This is not a ground that appears in the Applicant’s affidavit or application, nor was it argued by the Applicant at the hearing. However, as the issue has been raised by the Minister I will consider it.
In summary, it is submitted that there was no procedural unfairness in this regard because:
a)The decision is to which s.422B of the Act applies;
b)The similar claims information was extant in the delegate’s decision;[33]
c)The Applicant was on notice that this was an issue dispositive of the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[34] );
d)The information was put to the Applicant at the Tribunal hearing;[35]
e)Whilst the information was not put to the Applicant during the hearing in the way prescribed by s.424AA of the Act there was no obligation to do so (SZMIS v Minister for Immigration and Citizenship[36] at [10]-[11] per Marshall J);
f)A failure to apply s.424AA properly does not of itself give rise to jurisdictional error (SZLWI v Minister for Immigration and Citizenship[37] per Gilmour J at [19]); and
g)The Tribunal sought comment from the Applicant on the issue by means of the s.424A letter of 19th December 2008.
[33] Court Book 89-91
[34] (2006) 228 CLR 152; 231 ALR 592; 81 ALJR 515; [2006] HCA 63
[35] Court Book 334 at [53]
[36] [2009] FCA 167
[37] [2008] FCA 1330
Counsel for the Minister, presumably acting as a “model litigant”, considered whether there was anything arising from the way in which the Tribunal sought information from the Department that came within the ambit of s.424 of the Act.
The two requests for information are the document examination reports from the Investigation and Cancellations division of the Department and the inquiry about documents seized by the Department from Mr Zheng.
As to the first request, made by letter on 1st September and then by a corrected letter of 4th September 2008, it is submitted that s.424 arguably did not apply (SZLPO v Minister for Immigration and Citizenship[38] at [88] and [100]).
[38] [2009] FCAFC 51
Even assuming that it did apply, the Tribunal complied with the requirements in terms of the nature of the invitation, a specific request as to the manner in which any reply was to be given and a specified period for the reply in accordance with the Act.
As to the other request, it is submitted that even though it is addressed to a specific person, it simply seeks documents from the Department’s files and is arguably not addressed to a natural person (SZLPO at [105]). It is, in essence, a request for documents, not information (SZLPO at [110]).
It is also submitted that the decision of Buchanan J in SZLWQ v Minister for Immigration and Citizenship[39] at [51] and [52] applies. In that case, Buchanan J held that a failure to comply with the strict terms of s.424B(2) did not, in the circumstances of that case, amount to jurisdictional error (see also SZIAR v Minister for Immigration and Citizenship[40] per Cameron FM at [33]).
[39] [2008] FCA 1406
[40] (2008) 220 FLR 232;[2008] FMCA 1348
In any event, counsel for the Minister submitted that even if there were any error in the way that the Tribunal complied with ss.424, 424B or 424C, none of those matters go to jurisdiction and the Court should exercise its discretion to withhold relief.
Conclusions
The Tribunal made its decision primarily because it was not satisfied that the Applicant was a credible witness. The other main reason was the Applicant’s lack of knowledge about the religious beliefs which she professed to have. These are both matters of fact for the Tribunal to decide and there was evidence before the Tribunal upon which it was open to the Tribunal to draw those conclusions.
It is well established that a finding on credibility is “essentially a finding as to whether the prosecutor[41] should be believed in his claim – a finding on credibility which is the function of the primary decision-maker par excellence” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[42] per McHugh J at [67]).
[41] In this case, the applicant
[42] (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1
Again, in W148/00A v Minister for Immigration and Multicultural Affairs[43] 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.
[43] (2001) 185 ALR 703; [2001] FCA 679
The Applicant’s Ground 1 claims that the Tribunal did not make a fair decision. The only argument that the Applicant was able to bring was that she was really persecuted but the Tribunal did not believe her. This is essentially a claim for merits review of the Applicant’s factual claim for refugee status and a challenge to the Tribunal’s adverse credibility finding.
For the reasons given above, no jurisdictional error is shown and the Applicant’s Ground 1 does not succeed.
The Applicant’s Ground 2 is really an attempt at merits review and, as the Applicant submitted, is a complaint about the Tribunal’s adverse credibility finding. The claim that “RRT did not use favourable cases to my application” is a pro forma ground that this Court sees not infrequently and is really only a challenge to the Tribunal’s factual findings.
As to the Applicant’s claim that the Tribunal failed top consider the risk for her if she went back to China, the Tribunal specifically considered that matter in its Decision under the heading “Future Conduct”. The Tribunal found that the Applicant would have a real chance of persecution for reasons of her religion because it was not satisfied that she was a member of the Local Church or that she would attend Church meetings.[44]
[44] Court Book 340 at [87]-[88]
I am not persuaded that the Applicant ever claimed that the Tribunal provided procedural unfairness when it considered the near-identical similarity between the Applicant’s claims and those made by other clients of that same migration agent, Mr Zheng.
The Applicant’s second Ground of Review fails.
The Applicant is not legally represented and I propose to consider whether any argument can be made that jurisdictional error has occurred in any failure to comply with any section of Division 4 of Part 7 of the Migration Act. A useful “checklist” can be found in Minister for Immigration and Citizenship v SZMOK[45] at [11].
[45] [2009] FCAFC 83
The Applicant provided written statements and arguments (s.423).
Although the Tribunal’s letter acknowledging receipt of the application for review is in a form that was held by Raphael FM to bring it under the provisions of s.424 of the Act (SZNAV v Minister for Immigration & Anor[46]) for the reasons I have given in SZNPH v Minister for Immigration & Anor[47] I am, with respect, not persuaded that SZNAV has been correctly decided.
[46] [2009] FMCA 693
[47] [2009] FMCA 788
I am also of the view that the decision of Buchanan J in SZLWQ v Minister for Immigration and Citizenship[48] is on point and, being a decision on appeal from this Court, must be followed. I am not persuaded that it can be distinguished. In SZLWQ, his Honour said 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 ion 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.
[48] supra
The Tribunal’s letter of acknowledgement was not intended by the Tribunal to constitute an invitation in terms of s.424(2), as can be seen by the fact that the Tribunal proceeded to invite the Applicant to appear before it. I am not of the view that the fact that the Applicant did provide information with her application for RRT review alters the situation.
As to the Tribunal’s request by email to a Departmental officer on 3rd July 2008[49] to check to see if any of the Applicant’s documents were seized in the raid on Mr Zheng’s premises, I am inclined to take the view that this is strictly a request for documents and not a request for information (SZLPO at [110]-[111]) and not, therefore, a request under s.424.
[49] Court Book 276
The Tribunal’s letter to the Manager, Investigations and Cancellations, of 4th September 2008 is in the form of a request for information under s.424 and complies with the requirements of s.424B(2), in that it specifies a time within which the information is to be provided. The Tribunal has regarded the letter as coming within the terms of s.424, whether it strictly does or not.
In my view no breach of ss.424 or 424B is shown.
The Tribunal wrote to the Applicant under the provisions of s.424A of the Act on 19th December 2008, putting a number of pieces of information to her for her comments or response, including the question of the similarity of her statements with those of other applicants. The Applicant replied to that letter and provided her comments, which the Tribunal considered. There is no breach of s.424A.
The Tribunal wrote to the Applicant and invited her to a hearing under the provisions of s.425. The Applicant gave evidence at the hearing with the aid of an interpreter. No complaint was made about the quality of the interpreting. At the hearing the question of the similarity of the Applicant’s statements with those of other clients of Mr Zheng was put to her. Nothing turns on the fact that the Tribunal did not use the form of s.424AA when raising that issue with the Applicant.
No breach of s.425 is shown.
The invitation to the hearing complied with the requirements of section 425A.
The Applicant did not ask the Tribunal to call any witnesses (s.426).
There is no jurisdictional error apparent. The Tribunal decision is a privative clause decision as defined by s.474(2) and is not subject to orders in the nature of certiorari or mandamus (s.427(1)).
The application will be dismissed with costs.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 18 August 2009
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