SZNQX v Minister for Immigration

[2009] FMCA 917

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNQX v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 917

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution on the grounds of imputed practice of Falun Gong – credibility – no jurisdictional error.

Migration Act 1958 (Cth), ss.65, 91R, 422B, 424, 424A, 425, 425A, 426A, 474

SZNAV v Minister for Immigration and Citizenship [2009] FMCA 693
MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82
Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592
SZHFE v Minister for Immigration Multicultural and Indigenous Affairs (No 2) [2006] FCA 648
Minister for Immigration and Citizenship v SGLB (2004) 207 ALR 12
Kioa v West (1985) 159 CLR 550

Applicant: SZNQX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1370 of 2009

Judgment of: Scarlett FM

Hearing date: 2 September 2009

Date of Last Submission: 2 September 2009

Delivered at: Sydney

Delivered on: 2 September 2009

REPRESENTATION

The  Applicant: In person

Solicitors for the Respondents: Ms Hooper of 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 $3500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1370 of 2009

SZNQX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Application

1. The applicant is a citizen of China.  She has applied to the court for review of a decision of the Refugee Review Tribunal that was signed on 5 May 2009.  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 has asked the Court to issue a writ of certiorari to quash the decision of the Refugee Review Tribunal.  She has also asked the Court to make an order in the nature of Mandamus, returning her matter to the Tribunal so that it may reconsider her application according to law.  It has been explained to the applicant that in order to make those orders, the Court needs to be satisfied that the Tribunal decision is affected by jurisdictional error. 

2. In her application, which was filed on 9 June 2009, the applicant sets out three grounds, whereby she says that the Tribunal fell into error.  First, the applicant claims that a breach of the rules of natural justice occurred in connection with the making of the decision.  Second, she claims that the decision involved an error of law.  Third, the applicant claims that the Tribunal could not make the decision deciding her case, without further evidence or information. 

Background

1. The background to this matter is that the applicant arrived in Australia on 12 October 2008.  She applied for a Protection (Class XA) visa on 29 October 2008.  In a statement attached to her application for a visa, the applicant claimed that she and her husband had come under notice from the authorities, because they had refused to sign an agreement to receive compensation for the demolition of a property, which they owned in Kaifeng, City.  The applicant claimed that she and her husband resolutely refused to sign the agreement relating to the property, which she had inherited from her grandfather[1].

   [1] See Court Book at page 27

2. She claimed that the compensation rate was extremely unfair.  The applicant claims, in her statement, that on the morning of 12 August 2008, some people from the City Demolition and Relocation Office came to the site with a bulldozer and an excavator and started demolishing the premises.  A scuffle developed, and the applicant claimed that she and her husband suffered, “brutal beating with bleeding head, bruised nose, swollen face, and the bone fracture on my husband’s left leg”[2]. The applicant and her husband wrote the letters complaining about their treatment and even arranged for a petition to be signed by members of more than 700 households.  She continued her complaints, but this led to unwelcome attention from the authorities.  The applicant claimed in her statement:

   In the evening of 10 September 2008, two police from Wufu Street police station came over and took my husband and me to the police station.  The police station chief personally met us.  We were first notified of the list of offences we had committed:

   (a)  Refusal to give up our personal interests for the overall urban development plan with very bad impact;

   (b)  Taking the lead to make a petition and to write a complaining letter to smear against the leaders and to disturb social order;

   (c)  Having the record of practicing and being involved in Falun Gong[3].

   [2] See Court Book at page 27

   [3] See Court Book at page 28 and 29

3. The applicant claimed that she was speechless at these accusations.  However, her husband later told her that he had signed the agreement for the sake of the safety of their son and of their family.  The applicant said that she had planned to pursue her career in Malaysia, but she lost all confidence and hope due to this incident, so she proceeded onto Australia where she sees a bright future. 

4. A delegate of the Minister for Immigration and Citizenship wrote to the applicant on 19 November 2008 inviting her to attend an interview.  The interview was scheduled at 3.00 pm on Thursday, 18 December 2008.  The applicant attended that interview.  However, the delegate of the Minister for Immigration and Citizenship refused the application for a visa on 5 January 2009.  The delegate set out her reasons for this refusal in a Protection (Class XA) visa decision record.  Amongst other things, the delegate said:

   Whilst I accept that the applicant may have been a victim of property expropriation by the local government officials in her locality, I do not accept that she had suffered adverse treatment as a result of her refusal to vacate her house and accept payment less than promised by the government.  In general, I do not consider the applicant to be a reliable witness.  Her responses at interview were unconvincing and implausible. 

   Moreover, it appeared at interview that the applicant’s main motive in coming to Australia was to simply relax and explore the migration options available to her and her husband in Australia.  When it was put to her that there are different streams of migration which might be available to her, she confirmed that she explored other options, but realised that the refugee stream would be the most desirable one[4].

   The delegate went on to find:

   The applicant appears not to be of adverse interest to the authorities when she left China, although inter alia she mentioned that the local police implicated her that she was a Falun Gong practitioner.  When asked whether there was any true (sic) in it, she said that she only attended two information sessions on Falun Gong several years ago, and that she started practising Falun Gong in Australia a few days ago[5].

   [4] See Court Book at page 64

   [5] See Court Book at page 65

Application to the Refugee Review Tribunal

1. After the applicant’s application for a protection visa was refused, the applicant brought an application to the Refugee Review Tribunal for review of the delegate’s decision.  That application was made on 11 February 2009.  The applicant forwarded a copy of her passport to the Tribunal.  The Tribunal wrote to the applicant on 12 February 2009, acknowledging receipt of her application.  The letter said to the applicant, amongst other things:

   If you wish to provide material or written arguments for the tribunal to consider you should do so as soon as possible[6].

   [6] See Court Book at page 73

2. On 25 February 2009, the Tribunal wrote again to the applicant. That letter was headed “Invitation to Comment On or Respond to Information”. It is clear that the letter was intended to comply with the requirements of section 424A of the Migration Act.  The letter invited the applicant to comment on, or respond to, information that the Tribunal considered would be subject to any comments or response she might make, the reason, or a part of the reason, for affirming the decision under review. 

3. The letter then set out certain information. It covered exit procedures from China, based on a report from the Department of Foreign Affairs and Trade, dated September 2006, and a further report in November of that year. The information also referred to what it called a natural justice issue, and referred the applicant to the provisions of section 91R(3) of the Migration Act as being relevant to her claim that she had attended Falun Gong activities in Australia. 

4. The letter set out in each case why the Tribunal considered that the information was relevant to the review, and sought the applicant’s comments or response in writing by 20 March 2009[7].  On that same day the Tribunal wrote to the applicant and invited her to attend the hearing.  The hearing was scheduled for 9.30 am on 14 April 2009[8].    The applicant attended the hearing on 14 April 2009, and gave evidence with the assistance of an interpreter in the Mandarin language.  It appears from the RRT hearing record that the hearing commenced at 9.37 am and ended at 11.20 am[9].  The applicant brought with her a passport issued by The People’s Republic of China, and the Tribunal took a photocopy of it. 

   [7] See Court Book at page 75 to 78

   [8] See Court Book at page 79

   [9] See Court Book at page 81

5. The Tribunal made its decision on 5 May 2009.  In that decision, the Tribunal affirmed the decision of the delegate not to grant the applicant a Protection (Class XA) visa[10]. In the decision, The Tribunal set out, under the heading “Claims and Evidence”, details of the applicant’s claim for a visa, details of the Tribunal’s correspondence with the applicant, including the section 424A letter, which was not the subject of an answer, and the applicant’s oral evidence to the Tribunal.

   [10] See Court Book at page 92

6. The Tribunal decision also referred to evidence from other sources, including:

   i)Corruption in the People’s Republic of China; and

   ii)Departure from China[11]. 

   [11] See Court Book at page 102 - 103

7. In its finding and reasons, the Tribunal noted that the applicant had travelled to Australia on a valid Chinese passport and claimed to be a national of the People’s Republic of China.  The Tribunal accepted that she was and assessed her claims against China as her country of nationality.  However, the Tribunal did not find the applicant to be a credible witness.  The Tribunal said:

   The Tribunal found the applicant to be a witness who lacked credibility.  The Tribunal found the applicant to be inconsistent, confused, and non-responsive in the way direct questions were answered.  The Tribunal has the following concerns about the applicant’s evidence, which caused the Tribunal to question its veracity[12].

   [12] See Court Book at page 103, para 81

8. The Tribunal then set out a number of reasons as to why it doubted the applicant’s claim.  They can be found in the Court Book, at pages 103, through to 105, in paragraphs 82 to 94, respectively.  The reasons include the Tribunal’s inquiries as to whether the applicant had practised Falun Gong in Australia.  The Tribunal noted that it asked the applicant if she had practised in Australia, but the applicant replied that she had not, because she was too busy.  The Tribunal considered this particular matter and came to this conclusion:

   The Tribunal does not accept that the applicant is a Falun Gong or that she would be perceived to be Falun Gong.  The Tribunal finds that the applicant is not Falun Gong or interested in Falun Gong and will not practise Falun Gong if she is returned to China[13]. 

   [13] See Court Book at page 104, para 88

9. Those were the reasons that the Tribunal gave for not accepting the applicant’s claims.  The Tribunal summarised them at page 106 of the court book by saying:

   For these reasons, and the Tribunal’s finding about the applicant’s general lack of credibility, apparent from the applicant’s evasiveness, lack of detail, inconsistency and ineffective response to Tribunal’s questions, the Tribunal finds that the applicant has been untruthful in her claims to the Tribunal.  The Tribunal rejects the applicant’s claim[14]. 

   [14] See Court Book at page 106, para 95

10. Thus the Tribunal affirmed the decision not to grant the applicant Protection (Class XA) visa.

Application to the Federal Magistrates Court 

1. The applicant has commenced proceedings in this Court seeking judicial review of the Tribunal decision by filing an application and an affidavit in support on the 9 June 2009.  The applicant has since filed a notice of change of address for service on the 9 July 2009.  The lawyers for the Minister have filed a response on the 16 June advising that the first respondent, the Minister, opposed the making of all the orders sought in the application, and would seek costs if the application were to be dismissed.  The lawyers for the Minister have also filed, on the 11 August 2009, a written outline of submissions of some seven pages. 

2. The applicant has not filed a written outline of submissions but has attended Court today and was given the opportunity to make oral submissions in support of her claim.  The applicant has explained that she does not have any knowledge of Australian law and did not have a friend to help her out.  She explained that she felt, by involving herself in these proceedings, that the Department of Immigration and Citizenship may well assist her.  She confirmed that she had attended the Tribunal hearing and was able to give evidence with the assistance of the Mandarin interpreter.  She said that she gave the Tribunal a full account of her experiences and of her suffering.  She indicated that she was able to answer the questions of the Tribunal. 

3. When asked from the bench as to why she complained that there was a denial of nature justice in connection with the making of decision, the applicant said that the procedure was unfair because she gave the member a truthful account of her experiences.  She considered that the Tribunal should have made a finding that allowed her to stay in Australia, even if only temporarily.  When asked about the ground alleging an error of law, the applicant indicated that she did not know.  When asked about the ground that the Tribunal could not make the decision that it did without further evidence or information, the applicant was of the view that the Tribunal should have made its own inquiries about her case. 

4. I have had the benefit of reading a detailed outline of submissions filed by the Minister’s lawyers and I have heard Ms Hooper, solicitor, who appears for the Minister, make short oral submissions. The submissions were to the effect that the only possible jurisdictional error to be claimed was in relation to procedural unfairness, but pointed out that section 422B of the Act placed some restrictions on that insofar as common law natural justice was concerned. Although the applicant had said that she had given a truthful account to the Tribunal, it was clear that the applicant’s account was disbelieved by the Tribunal.

5. It was further submitted that the Tribunal hearing took in excess of two hours, or took approximately two hours and the Tribunal posed a number of questions to the applicant which resulted in the Tribunal disbelieving the applicant’s evidence. In the written outline of submissions, which I noted filed on the 11 August 2009, reference was made to section 424 of the Migration Act and a submission was made that the correctness of the decision, SZNAV v Minister for Immigration and Citizenship[15], was disputed by the Minister but, in any event, that decision did not bear on the outcome of this matter because the letter from the Tribunal to the applicant acknowledging receipt of her application, which is set out at page 73 of the Court Book, is distinguishable from the letter which was considered by the court in SZNAV. 

   [15] [2009] FMCA 693

6. Instead, it was submitted that it was substantially similar to the letter considered by the Full Court of the Federal Court in MZXRE v Minister for Immigration and Citizenship[16], at [7] and [8].  In oral submissions it was pointed out to the Court that it was no longer necessary for the Court to give consideration to the first instance decision in SZNAV, because the Full Court of the Federal Court has allowed the Minister’s appeal against that decision[17].   In my view it is no longer necessary for the Court to consider the SZNAV situation. 

   [16] [2009] FCAFC 82

   [17] See Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109

7. In dealing with the Tribunal decision generally, it is quite clear that the primary reason for the Tribunal’s refusal to grant the application was the fact that the Tribunal comprehensively disbelieved the applicant’s claim.  The Tribunal made it quite clear that it rejected the applicant’s claims in their entirety.  The question of credibility is a matter for the Tribunal.  It is well accepted that the credibility, or otherwise, of a witness, or of an applicant, is the function of the primary decision maker, in this case, the Refugee Review Tribunal par excellence. 

8. Whilst credibility findings, like any findings of fact, are not immune or invulnerable to review but they are difficult to overcome, particularly where the Tribunal has provided a rational basis for not accepting the applicant’s claims and relied upon matters of a logically probative of the issues that it was determining.  In particular, I am referred to a decision in Kopalapillai v Minister for Immigration and Multicultural Affairs[18] at 552 and 559.  The authority on credibility as being a matter for the primary decision maker, par excellence, is, of course, the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[19] on page 423 at [67].

   [18] (1998) 86 FCR 547

   [19] (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1

9. Dealing with the applicant’s grounds of review, the first ground is a claim of denial of natural justice. It is true that section 422B of the Act provides that the provisions of Division 4 of Part 7 of the Act are an exhaustive statement of the natural justice hearing rule. It is not the case that common law natural justice has a place in such circumstances. In particular, I am referred to Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat[20], and SZCIJ v Minister for Immigration and Multicultural Affairs[21]. I note that both of those decisions were affirmed in the decision of Saeed v Minister for Immigration and Citizenship[22] at [46].

   [20] [2006] FCAFC 61

   [21] [2006] FCAFC 62

   [22] [2009] FCAFC 41

10. The Court must look at the matters contained in Division 4 of Part 7 when considering whether procedural fairness has been afforded the applicant. There is no breach of section 424 of the Migration Act and, indeed, there is no breach of section 424A. The Minister is correct to submit that this is not a case where the Tribunal’s obligations were enlivened under section 424A, because the material put to the applicant arose either from her own claims or from independent country information. Those matters are excluded from the operation of subsection 424A(1) by subsection 424A(3).

11. The section 424A letter did refer to the potential application of subsection 91R(3) in respect of the applicant’s conduct in Australia, which was to the effect that the applicant did not practice Falun Gong in Australia. It is clear that no consequences flow from the fact that the Tribunal referred in its section 424A letter to these matters, when it was not, in fact, obliged to do so (see SZLSM v Minister for Immigration and Citizenship[23] at [41] per Cowdroy J.

    [23] [2009] FCA 537

1. The Court must look at section 425 of the Act in order to ascertain whether the applicant was given the opportunity for a hearing and was given a fair hearing. The Tribunal wrote to the applicant and invited her to attend a hearing. In my view, the invitation complied with the requirements of section 425A of the Migration Act. It is set out, the time and place and date at which she was required to attend the hearing, it gave sufficient notice of the hearing, and it contained wording that advised the applicant of the effect of section 426A of the Migration Act.  The applicant attended the hearing.  She was provided with the services of an interpreter in the Mandarin language.

2. There was no complaint made about the ability of the interpreter to provide an adequate interpretation of the evidence.  There was no complaint made that the applicant was not able to give proper evidence and, indeed, it appears from a reading of the Tribunal decision record that the applicant was able to give quite detailed evidence and was questioned about her case by the Tribunal member.  The Court must look at whether the issues discussed at the hearing were those which the applicant should have expected to be discussed at the hearing.  In doing so, the Court must look at the delegate’s decision and I note that the delegate rejected the veracity of almost the entirety of the applicant’s claims.

3. Those matters were put to the applicant at the hearing, and I agree with the submission that the applicant could have been in no doubt at the hearing that the entirety of her account was in issue. Thus, there is no failure to provide a fair hearing under section 425 of the Act, in the sense referred to by the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[24] at [47].

   [24] (2006) 231 ALR 592

4. I am satisfied that the applicant’s first ground of review has not been made out. 

5. The second ground of review is a claim that the decision involved an error of law.  The applicant was not able to indicate in what way there had been an error of law.

6. Ms Hooper, who appeared for the Minister, has, no doubt, acting as a model litigant, referred the court to subsection 91R(3) of the Migration Act and submitted that the Tribunal did not breach it by having regard to the applicant’s absence of Falun Gong practice in Australia, in support of its finding that the applicant would not practice Falun Gong if she were to return to China, for it is further submitted that, in a number of cases, the Federal Court has rejected the proposition that a Tribunal breaches subsection 91R(3) by taking into account activities of the applicant in Australia which are inconsistent with his or her claim for refugee status. Those decisions include SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[25] per Jacobson J at [30].

   [25] [2006] FCA 648

7. It would appear to me that, where an applicant takes part in activities in Australia which are clearly inconsistent with the applicant’s claim for refugee status, they are most obviously not activities that are entered into solely to strengthen an applicant’s refugee claims.  Quite obviously the reverse must be true.  In this case, the Tribunal noted that the applicant, who had been accused on her account of being a Falun Gong practitioner in China, and had made some reference to the practice of Falun Gong, albeit in a relatively minor way, gave evidence that she had been too busy to practice Falun Gong in Australia.  Clearly that is not something that goes towards strengthening her refugee claim on that basis, and the Tribunal did not fall into any error in that finding. 

8. In my view there is no evidence of any error of law and the applicant’s second ground, therefore, must fail. 

9. The applicant’s third and final ground is that the Tribunal could not make the decision that it did without further evidence or information.  It is well accepted that there is no general obligation on the Tribunal to make its own inquiries (see Minister for Immigration and Citizenship v SGLB[26] at [43].

   [26] (2004) 207 ALR 12

10. The task of an applicant for a visa, under section 65 of the Migration Act, is to present the evidence and make submissions that the applicant considers relevant for his or her application for a visa. If the Tribunal is satisfied that the applicant meets the criteria for a visa, then the visa must be granted. But unless the Tribunal is affirmatively satisfied, the application must be refused. It is well established that it is no part of the task of the Refugee Review Tribunal to make out the applicant’s case for him or her[27].  Thus, it would appear to me that the applicant’s third ground has not been made out. 

    [27] See Kioa v West (1985) 159 CLR 550 per Mason J at 587

11. I am mindful of the fact that the applicant is not legally represented in these proceedings.  At the first court date on 6 July 2009, the applicant was given the opportunity to obtain independent legal advice from a lawyer on the Refugee Review Tribunal legal advice panel.  The court records show that the applicant did, in fact, receive advice from a barrister on the panel on 11 August 2009.  However, the applicant was not legally represented at these proceedings.  The matter had been listed for final hearing on 25 August 2009, but the applicant was ill on that day and was able to forward a medical certificate to the court.  As a result, the application was adjourned for final hearing today. 

12. The Court’s independent reading of the Tribunal decision and the supporting documentation does not disclose any arguable case of jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act.  Privative clause decisions are final and conclusive and not subject to orders in the nature of certiorari or mandamus which, in effect, are the orders that the applicant seeks.  It follows, therefore, that the application must be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  15 September 2009