SZNMB v Minister for Immigration

Case •

[2009] FMCA 647

•

30 June 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNMB v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 647
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 is a citizen of the People's Republic of China claiming fear of persecution for reasons of her political opinion and religion – credibility – no reviewable error.
Migration Act 1958 (Cth), ss.424A, 424AA, 425, 474
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 58 ALD 609; 74 ALJR 405;[2000] HCA 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 231 ALR 592; 81 ALJR 515; [2006] HCA 63
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
Applicant: SZNMB
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 891 of 2009
Judgment of: Scarlett FM
Hearing date: 30 June 2009
Date of Last Submission: 30 June 2009
Delivered at: Sydney
Delivered on: 30 June 2009

REPRESENTATION

Applicant: Appeared in person
Solicitor for the Respondents: Ms Jeong
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 891 of 2009

SZNMB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant is a citizen of China. Her application to the Court is for review of a decision of the Refugee Review Tribunal made on 17th March 2009. On that date the Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant the Applicant a Protection (Class XA) visa. 

  2. The Applicant now asks the Court for orders in the nature of certiorari and mandamus.  In her application she asks for an order to set aside the Refugee Review Tribunal's decision and for an order requiring the Tribunal to review her case again. 

  3. It has been explained to the Applicant that whilst the Court has power to make those orders, the Court will only do so if it is satisfied that the Tribunal decision is affected by jurisdictional error.  

  4. In her application the Applicant sets out three grounds in which she claims the Tribunal fell into error:

    (1) I cannot go back to China. I will be persecuted by the Chinese government. 

    (2) Jurisdictional error has been made.  RRT considered my case unfairly.  They doubt my claim without substantive evidence. 

    (3) Procedural fairness has been denied by RRT. 

Background

  1. By way of background, the Applicant arrived in Australia on 12th August 2008. On 4th September 2008 she applied for a Protection (Class XA) visa.  Her application was prepared with the assistance of a migration agent, one Weiming Qian. 

  2. The application was accompanied by a one-page typed statement setting out the Applicant's claims.  She set out that she was a young woman of 33 years of age who is a Hong Kong temporary residence visa holder.  She claimed to have been born in Guizhou province of China.  She claimed that her parents had devoted themselves to the Revolution when they were young but were labelled ‘anti-revolutionists’ during the Cultural Revolution. 

  3. The Applicant claims that in September 2000 her father was persecuted by the Communist Party for practising Falun Gong and suffered injuries all over his body.  She claimed that she went to live in Hong Kong in 2003. She complained that when she got there she found that Hong Kong was not a democratic and free society, as she had imagined, but a region under the control of the Chinese Communist Party. 

  4. The Applicant claimed that her father died in March 2008 after a long illness.  She claimed that when he was dying he told her mother that it was the Communist Party that had killed him.  She claimed that what most upset her late father was that he had to leave the world with the label of "evil cult practitioner".  The Applicant claimed to have written a letter of the Guizhou government seeking redress for that, but an official was enraged at her letter and threatened to have her arrested.  When the Applicant would not leave, the official called in the police who detained her for a day on a charge of disturbing social security.

  5. The Applicant claimed that she left Guizhou in despair and returned to Hong Kong and kept writing letters to various departments of the Guizhou government in the hope of resurrecting her father's reputation.  She claimed that by June of that year her mother begged her to leave Hong Kong because of the trouble that the letters were causing. 

  6. The Department of Immigration & Citizenship wrote to the Applicant on 14th October 2008 and invited her to attend an interview.  The interview was scheduled for Friday 31st October 2008.  The Applicant attended the interview which was conducted with the assistance of an interpreter. 

  7. In the delegate's Protection (Class XA) visa decision record the delegate referred to the Applicant's claim in some detail and considered Independent Country Information about Hong Kong.  The delegate was not satisfied with the credibility of the Applicant's account given at the interview.  The delegate said:

    When the applicant was interviewed by the Delegate, her responses were vague and unconvincing which raised doubts as to the veracity of her claims.  The applicant was unsure of her responses at the interview, which raises doubts as to whether the claimed events actually occurred. The chronology of events provided by the applicant throughout the interview was inconsistent.[1]

    [1] See Court Book at page 58.

  8. The delegate also noted that there were doubts about the reasons why the Applicant applied for a protection visa.  The delegate noted a statement by the Applicant at the interview that her intention to visit Australia was to tour in Australia. The delegate came to this conclusion:

    Therefore, I conclude that the applicant did not lodge the Protection visa for a genuine Convention reason but to extend her stay in Australia. The Convention nexus was explained to the applicant and the delegate stressed to the applicant that she must have a well-founded fear of persecution to be recognised as a refugee.[2]

    [2] See Court Book at page 60.

  9. The delegate expressed concerns over the Applicant's general credibility and did not accept that the Applicant had a political profile in Hong Kong and would suffer Convention-based persecution for her imputed political opinion in the foreseeable future.

  10. The Minister's delegate refused the application for a Protection (Class XA) visa on 28th November 2008. 

Application for Review by the Refugee Review Tribunal

  1. On 15th December 2008 the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. On this occasion she did not show her former migration agent as representing her, although she gave a post office box number in a different suburb from her home address as her address for correspondence. 

  2. The Tribunal wrote to the Applicant on 19th January 2009 inviting her to attend a hearing to take place on 27th February 2009.  The Applicant forwarded a Response to Hearing Invitation to the Tribunal indicating that she wished to attend the hearing and needed an interpreter in the Mandarin dialect of the Chinese language.  She did not ask the Tribunal to take oral evidence from any witnesses, nor did she indicate that she wanted to bring someone else with her to the hearing.

  3. The Applicant attended the hearing on 27th February 2009. At the hearing she gave evidence with the assistance of an interpreter in the Mandarin language. She produced her passport issued by the Hong Kong Special Administrative Region of the People's Republic of China.

  4. The Tribunal made its decision on 17th March 2009 and notified the Applicant by post the following day.

The Tribunal’s Decision

  1. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. In the Tribunal decision record the Tribunal set out the Applicant's claims and evidence from the statement that accompanied her protection visa application. 

  2. The Tribunal also set out a detailed summary of the Applicant's evidence to the Tribunal. I note that at paragraph [31] of the decision record the Tribunal referred to the requirements of s.424AA of the Migration Act and indicated that the Tribunal had explained the operation of that section to the Applicant. At paragraph [51] of the decision record the Tribunal again referred to s.424AA as far as asking the Applicant if she needed more time to comment on or respond to information the Tribunal had discussed in the course of the hearing.

  3. The Tribunal considered country information relating to Falun Gong and set that out in the Tribunal decision at pages 92 to 95 of the Court Book. 

Tribunal’s Findings and Reasons

  1. In its findings and reasons the Tribunal was satisfied that the Applicant was a citizen of China, but did not accept that the Applicant had a well-founded fear of persecution for a Convention reason. 

  2. It set out its reasons and noted that it did not accept that the Applicant had suffered any of the harm that she claimed.

    The Tribunal does not accept that the Applicant’s father was a Falun Gong practitioner, or that he was involved in any actual and/or imputed Falun Gong activities, or that he was ever persecuted or harmed in any manner by the authorities in China, or that his death had anything to do with any persecution by the authorities, or that she wrote any letters to the authorities, or that she was ever arrested and/or detained by the authorities, or that her parents were devoted to the Cultural Revolution, or that they were labelled ‘anti-revolutionists’, or that she or any member of her family had an actual or imputed anti-Chinese government opinion (political or otherwise), or that in June 2008, her mother called her begging her to give up her letter writing, or that any department in the People's Republic of China was angry at her, or that she was afraid that she would be arrested in Hong Kong, or she came to Australia to seek protection.[3]

    The Tribunal did not accept that the Applicant or any member of her family had suffered any harm that the Applicant claimed. 

    [3] See Court Book at page 98.

  3. Accordingly, the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and therefore did not satisfy the criterion set out in s.36(2)(a) for a protection visa. 

Application for Judicial Review

  1. The Applicant commenced proceedings in this Court seeking judicial review of the Tribunal decision by means of her application and affidavit filed on 17th April 2009. She has not filed any other documents since then, although has attended Court today and was given the opportunity to make oral submissions. 

  2. I note that the affidavit filed by the Applicant on 17th April 2009 appears not to comply with the Rules, particularly r.15.27.  Rule 15.27(2) says:

    If the person making an affidavit does not have an adequate command of English (a) a translation of the affidavit and oath or affirmation must be read or given in writing to the person in a language that the person understands and (b) the translator must certify in or below the jurat that he or she has done so. 

  3. The Applicant identified her signature on the affidavit but had indicated that she was not aware of what was in it and had not had the contents of the affidavit explained to her.

  4. I note that the Justice of the Peace who witnessed the affidavit is in fact the Applicant's former migration agent Weiming Qian.  This person has signed as a Justice of the Peace adding after her name the title JP160204.  It is regrettable that the Justice of the Peace who should know the requirements for swearing or affirming an affidavit by a person who has no adequate command of English has failed to do so.

  5. In my view, this is a matter that ought to be brought to the attention of the Attorney-General's Department of New South Wales which, as I understand it, is the Department that is responsible for the training and supervision of Justices of the Peace.  The affidavit just does not comply with the Rules and is of no benefit to the Applicant. I have indicated that I will not hold this against the Applicant as this is not something that she could be expected to know.  However, a Justice of the Peace who is a migration agent should be expected to know these things. 

  6. The grounds of relief in the Applicant's application are somewhat sparse and rather vague. The Applicant was asked questions from the Bench as to why she considered that the Tribunal had considered her case unfairly and why she claimed that procedural fairness had been denied.  The Applicant told the Court that in effect the Tribunal was unfair because it did not grant her application, but did not elaborate further. 

Submissions

  1. The Applicant was given the opportunity of making an oral submission to the Court in support of her case and this was particularly important as she had not filed any written outline of submissions. The Applicant indicated that she did not wish to make an oral submission. 

  2. I heard a short oral submission from Ms Jeong, solicitor, who appeared for the Minister, and offered the Applicant the opportunity to address the Court in reply.  The Applicant indicated she had nothing to say. 

  3. The lawyers for the Minister filed a written outline of submissions and I am informed by Ms Jeong who appeared for the Minister that a copy of that written outline of submissions had been provided to the Applicant.  In effect, the Minister's submissions are that the Tribunal was simply not satisfied that the Applicant was a credible witness given her vague, unpersuasive and inconsistent evidence. 

  4. It was submitted that this finding was open to the Tribunal to make and it should not be disturbed on an application for judicial review.  The Court was referred to the decision for Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham[4]. 

    [4] (2000) 168 ALR 407; 58 ALD 609; 74 ALJR 405; [2000] HCA 1 per McHugh J at [67]

  5. As to the Applicant's three grounds, the Minister submits that the first ground is no more than an assertion of the Applicant's claims for refugee status and it should be dismissed as the power of the Court is restricted to deciding whether or not there was jurisdictional error, not as to whether the Applicant is a genuine refugee. 

  6. As to the Applicant's second ground, which claims that the Tribunal considered her case unfairly because it doubted her claim without substantive evidence in support, it was submitted that it was for the Applicant to satisfy the Tribunal that she was a person to whom protection obligations were owed and that if the Tribunal is unable to reach that requisite level of satisfaction it must affirm the decision under review.  The Tribunal is not required to accept the Applicant's claims in the absence of evidence refuting those claims. 

  7. As to the extent that the ground alleged that the decision was not fair, the basis for which was the Tribunal did not find in the Applicant's favour, it was submitted that procedural fairness only requires a fair process, not a fair outcome (see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor[5]).

    [5] (2006) 231 ALR 592; 81 ALJR 515; [2006] HCA 63 at [25]

  8. As to Ground 3, which is described as "a bald assertion of a denial of procedural fairness", it was submitted that this was an application to which s.422B of the Act applies.  That section of course provides that Part 7 Division 4 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals.  Unless the Applicant can show a breach of one of the provisions in the Division, that ground must fail. 

  9. The Minister has considered whether the Tribunal complied with ss.424A and 425 and submits that they were. The Minister further submitted that although the Tribunal appeared to have embarked on a disclosure of information in purported compliance with s.424AA, there was no information that was required to be put in accordance with s.424A of the Migration Act. As set out by the High Court in SZBYR v Minister for Immigration & Citizenship[6], thought processes, subjective appraisals of the evidence and inconsistencies in the evidence are not information.  Thus, it is submitted that all grounds of the application should be dismissed. 

    [6] [2007] HCA 26

Considerations

  1. Dealing with the Applicant's grounds: Ground 1 claims that she cannot go back to China because she will be persecuted by the Chinese government. This ground is no more than a re-assertion of the Applicant's claims for refugee status. It is an attempt to persuade the Court to embark on merits review, but that is not the function of the Court on conducting judicial review.  The ground does not set out any jurisdictional error.  Ground 1 therefore fails.

Ground 2

  1. Ground 2 claims that jurisdictional error has been made, that the Tribunal considered the Applicant's case unfairly and doubted the Applicant's claim without substantive evidence.  It has been made clear by the Applicant today in response to a direct question from the Bench that she considered the decision to be unfair because the Tribunal did not find in her favour. 

  2. As has been submitted by the Minister, the Tribunal was not satisfied as to the Applicant's credibility.  It is well established that provided of course there is evidence upon which such a finding can be made that findings of credibility are findings of fact and are matters that should remain in the province of the administrative decision-maker, in this case the Refugee Review Tribunal. 

  3. In my view, the Tribunal has set out the reasons why it has made that finding and on the evidence before the Tribunal it was open to the Tribunal to form this adverse view of the Applicant's credibility. 

  4. The claim in Ground 2 that the Tribunal fell into error by doubting her claim without substantive evidence effectively misconceives the Tribunal's function. Under s.65 of the Migration Act, the Tribunal, if standing in the shoes of the Minister if satisfied that the Applicant meets all the criteria for a visa, must grant the visa. If not satisfied, then the visa must be refused. In effect, it is for the Applicant to provide evidence to support her claim for a protection visa, not for the Tribunal to provide evidence refuting that claim. No jurisdictional error appears in this regard and the Applicant's second ground must fail.

Ground 3

  1. The third ground is a general claim of a denial of procedural fairness. If there were to be a breach of s.425 of the Migration Act, then this would be a denial of procedural fairness amounting to jurisdictional error.

  2. In this case, however, the Tribunal wrote to the Applicant inviting her to attend a hearing. The Tribunal wrote on 19th January 2009 inviting the Applicant to attend a hearing on 27th February 2009. The Tribunal's hearing invitation letter complied with the requirements of s.425A of the Migration Act. The Applicant was given more than the prescribed degree of notice of the hearing and the hearing invitation notice does advise the Applicant of the provisions of s.426A of the Act.

  3. The Applicant attended the hearing and, as requested, was given the services of an interpreter in Mandarin, which was the language she asked for.  There is no claim made as to any inadequacy on the part of the interpreter that may have affected the Applicant's ability to give evidence to the Tribunal. The Applicant did give evidence to the Tribunal. She did not ask the Tribunal to hear from any witness, nor did she ask the Tribunal if anyone could accompany her to the hearing.  In my view, a fair reading of the Tribunal decision record does not show that the Applicant was in any way hindered in being able to give evidence to the Tribunal. 

  1. The issues upon which the Tribunal decided the matter, namely credibility or lack thereof, which led to the Tribunal not being satisfied that the Applicant met the criterion for a protection visa, was identical to the issues raised in the delegate's decision. Thus, there was no issue raised at the Tribunal hearing which would have disadvantaged the Applicant because she should have been aware from the delegate's decision record that her entire credibility and the credibility of her account of persecution was in issue. I am satisfied that no breach of s.425 of the Act has been shown. In my view, there is no breach of s.424A of the Act.

  2. The material relied upon by the Tribunal came from two sources: 

    i)The Applicant herself; and

    ii)Independent Country Information.

    This material is excluded from the operation of s.424A(1) of the Act by the operation of s.424A(3).

  3. In any event, as has been noted in the Minister's written submissions, the Tribunal did attempt to comply with the requirements of s.424AA of the Act. The Tribunal decision record effectively sandwiches the account of the Applicant's evidence between two paragraphs referring to the effect of s.424AA of the Act. In [3] of the Tribunal decision the Tribunal said:

    Pursuant to s.424AA, the Tribunal explained to the applicant that in the course of the hearing the Tribunal may discuss with her information that could or would be a reason for affirming the decision to refuse the visa. The Tribunal indicated that the Tribunal would carefully explain the information to her so that she could understand it and understand its relevance and that the Tribunal would then invite her to comment on or respond to that information. The Tribunal indicated that if she needed, she was entitled to seek more time to comment on or respond to that information.[7]

    [7] See Court Book at page 89.

  4. The Tribunal's account of the evidence and matters put to the Applicant by the Tribunal in [32] through to [50] inclusive, which can be found at pages 89 through to 92 of the Court Book. After those matters are referred to, the Tribunal then said at [51]:

    The Tribunal at the end of the hearing asked the applicant if she needed more time to comment on and/or respond to information that the Tribunal discussed in the course of the hearing that could or would be a reason for affirming the decision to refuse the visa. The Tribunal asked the applicant if she needed more time and the applicant did not request any more time.[8]

    [8] See Court Book at page 92.

  5. In my view, the passages quoted in the Tribunal decision record indicate an intention by the Tribunal to put matters to the Applicant in compliance with the requirements of s.424AA of the Migration Act. True it is that s.424AA is not mandatory and there is no obligation on the Tribunal to follow that procedure. It is clearly the case that the material that was put to the Applicant for her comment appears to be material that would not require matters being put to the Applicant in writing under the provisions of s.424A(1) of the Migration Act.

  6. It should be made clear, however, that it is no criticism of the Tribunal if matters that may lead to a dismissal of the application are put to the Applicant for comment by using the procedure set out in s.424AA of the Act even though it may not strictly be necessary to employ either s.424AA or s.424A(1). It is preferable for the Tribunal to err on the side of caution by employing the s.424AA procedure without its being strictly necessary than to neglect to use that procedure or that under s.424A(1) when it may be necessary.

  7. In my view, there is no breach of s.424A of the Migration Act. I am of the view that there is no procedural fairness that has been denied by the Tribunal and no breach of the requirements of any section of Division 4 of Part 7 of the Act. Consequently, the Applicant's third ground of review does not succeed.

Conclusion

  1. I am conscious of the fact that the Applicant is not legally represented in these proceedings. She has had the benefit of a referral to a lawyer on the Refugee Review Tribunal Legal Advice Scheme Panel, in this case an experienced solicitor, Mr Kessels, whose report has been placed on the Court file indicating that the Applicant was contacted by declined to attend an appointment.  It is not for the Court to speculate as to what reason the Applicant might have had for not consulting a lawyer on the RRT Legal Advice Panel after a referral was made at the Applicant's request. Certainly the Applicant's decision not to provide any submissions to the Court, either orally or in writing, has not assisted her case.

  2. At the same time, I am of the view that procedural fairness in this Court requires the Court to conduct its own independent assessment of the Tribunal decision and supporting material in order to ascertain whether an arguable case of jurisdictional error can be made.  I am unable to discern any. 

  3. In my view, there is no jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. Section 474 of the Migration Act provides that privative clause decisions are final and conclusive and not subject to orders in the nature of certiorari or mandamus. It follows, therefore, that the application cannot succeed and must be dismissed. I therefore order that the application is dismissed.

  4. It is now appropriate for the Court to consider submissions on costs. 

  5. There is an application before the Court on behalf of the Minister for an order for costs against the Applicant. The amount sought is $3,000.00, which is significantly below the amount provided in the Court scale. In my view, it is an appropriate figure and indeed a comparatively modest sum. 

  6. I order that the Applicant is to pay the First Respondent's costs fixed in the sum of $3,000.00.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  9 July 2009


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