SZNRK v Minister for Immigration
[2009] FMCA 856
•18 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNRK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 856 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application to review decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – citizen of China claiming well founded fear of persecution on the ground of being a Falun Gong practitioner – credibility – no reviewable error. |
| Migration Act 1958 (Cth) ss.424, 424A, 425, 474 |
| SZNAV v Minister for Immigration and Citizenship [2009] FMCA 693 distinguished MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82 SZNNJ v Minister for Immigration & Anor [2009] FMCA 752 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | SZNRK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1438 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 August 2009 |
| Date of Last Submission: | 18 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2009 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Respondent: | Ms Hooper |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,200.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1438 of 2009
| SZNRK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is the citizen of the People’s Republic of China. He has applied to the Court under the provisions of s.476 of the Migration Act for review of the decision of the Refugee Review Tribunal.
The decision was made on 14th May 2009. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant commenced proceedings in this Court on 17th June 2009 by filing an application and an affidavit in support. Since then, he has filed a Notice of Change of Address for Service, but has not filed any other documents upon which he seeks to rely.
In his application, the Applicant seeks that the Court should issue a writ of prohibition prohibiting the First Respondent, the Minister, from proceeding further with any action in respect of the decision of the Refugee Review Tribunal. He also asks for an order, which should probably be a declaration, that the decision of the Refugee Review Tribunal was made in excess of jurisdiction.
It has been explained to the Applicant that in order to make the orders that he seeks, the Court would need to be satisfied that the decision of the Tribunal is affected by jurisdictional error.
Background
The background of this matter is that the Applicant arrived in Australia on 26th October 2008. Just over a month later, on 28th November 2008, he applied for a Protection (Class XA) visa. With his application for a visa, he provided a one page typed statement in English.
The statement set out that in 1995 the Applicant’s parents started to practice Falun Gong and he acquired a solid understanding of that practice from his parents. In 1999, the Chinese government started to prosecute Falun Gong. In the year 2003, the Applicant started to work as a truck driver and in the course of his employment injured his back. His parents took him to hospitals and other places for treatment without success.
Eventually, at the suggestion of his parents, he took up the practice of Falun Gong. He practised at home secretly. He said that Falun Gong did work as far as his injury was concerned. However, when one of his friends visited his home, the friend found some Falun Gong books. He, presumably, reported that matter to the authorities in December 2004. The Applicant said that he escaped to his aunt’s home but in February 2005 was arrested when he went home for Chinese New Year. He claimed:
I have been arrested for 1 year and I suffered tortures during the arrest. I have scars on my chest because of the torture. I was released at February. My parents were afraid that I will be arrested again so they sent me overseas.[1]
[1] See Court Book at page 27.
A delegate of the Minister invited the Applicant to attend an interview to take place at the office of the Department of Immigration and Citizenship in Sydney on 29th January 2009. That date was changed by being brought forward one day to 28th January 2009. However, the Applicant did not attend the interview. The delegate noted in the protection visa decision record:
The applicant did not contact or telephone me to confirm his attendance and did not attend the interview as scheduled. Neither of the letters sent to the applicant’s latest postal address has returned to the Department. The applicant has not provided his telephone number.[2]
[2] See Court Book at page 47.
The Minister’s delegate refused the application for a protection visa on 29th January 2009. The fact that the Applicant did not attend the interview clearly played a major role in the delegate’s decision. The delegate gave these reasons:
If interviewed, I would have required the applicant to satisfy me that he has a genuine fear of harm and that there is a real chance of persecution occurring for a reason of his Falun Gong beliefs and/or any other Convention related reason should he return to China in the foreseeable future.
In the absence of verifiable evidence to the contrary I conclude that the applicant has not experienced any harm or mistreatment of sufficient gravity as to amount to persecution. [3]
[3] See Court Book at page 48.
Application to the Refugee Review Tribunal
After his application for a visa was refused, the Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. That application was received by the Tribunal on 2nd March 2009. The Applicant did not provide any documentary evidence to the Tribunal other than a copy of the delegate’s decision refusing the application for a visa.
On that same day, the Tribunal wrote to the Applicant, acknowledging receipt of his application. The Court Book shows that the letter was posted by registered post the following day, 3rd March 2009. The letter said 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.[4]
[4] See Court Book at page 53.
It does not appear that the Applicant provided any documentary evidence in reply to that letter and on 11th March 2009 the Tribunal wrote to the Applicant, inviting him to attend a hearing to take place on 8th April 2009.
The Applicant forwarded a Response to Hearing Invitation indicating that he did want to attend and he would like the assistance of an interpreter in the Mandarin language. He also indicated a preference for a male interpreter[5].
[5] See Court Book at page 56.
The Applicant attended the hearing on 8th April 2009 and according to the RRT hearing record, the Tribunal did provide a male interpreter who was qualified at NAATI level 3 in Mandarin. The Applicant produced his Chinese passport to the Tribunal. The Applicant gave evidence at the Tribunal hearing.
It is clear that during the hearing the Tribunal put certain matters to him for his comment. The Applicant asked for the opportunity to reply to those matters in writing. What then happened was that on 14th April 2009, the Tribunal wrote to the Applicant a letter headed ‘Invitation to comment on or respond to information’. That letter, invited the Applicant to comment on or respond to information that the Tribunal considered would, subject to any comments or response that the Applicant might make, be the reason or a part of the reason for affirming the decision under review.
The letter then set out particulars of that information. The letter told the Applicant that there were apparent contradictions and inconsistencies between what the Applicant had stated in his protection visa application, in the statement that he provided with the application and at the hearing. The Tribunal also referred to a number of apparent implausibilities in his claims and set those out in some detail. The Tribunal’s letter invited the Applicant to provide his comments or response by 7th May 2009.[6]
[6] See Court Book at pages 63 – 73.
The Applicant replied to the Tribunal’s letter by means of a short statement received by post on 20th April 2009. The statement said relevantly:
On 2 October 2004 I travelled to Korea and stayed there for 4 days. I did not seek protection because I had not been prosecuted in China at that time.
On 3 October 2009 I went to Japan and stayed there for another 4 days. I did not know it is possible for me to seek protection in Japan.
I am a Falun Gong practitioner, and I face a risk of being prosecuted if I return to China. Please believe me.[7]
[7] See Court Book at page 74.
The Tribunal signed its decision on 14th May 2009 affirming the decision of the delegate not to grant the Applicant a Protection (Class XA) visa.
Tribunal’s Decision
In its decision under the heading ‘Claims and Evidence’, the Tribunal set out the material contained in the application for a protection visa, the statement, the Applicant’s evidence, the s.424A letter and the Applicant’s statement in reply.
The Tribunal set out that at the hearing it had certain concerns, and it is clear that the Tribunal sought to follow at the hearing the procedure set out in s.424AA of the Act. The Tribunal said:
At the beginning of the hearing the Tribunal stated that the Tribunal may put to the applicant information that the Tribunal may consider to be relevant and reasons for affirming the decision. That is the reasons for making an unfavourable decision. The Tribunal also stated that if it does that then the Tribunal must explain why the information is relevant and the consequences of the information that is why the information may lead to an unfavourable decision. The Tribunal also stated that it will also invite the applicant to comment on or respond to the information orally, or in writing. The applicant may also seek additional time to comment on or respond to the information.[8]
[8] See Court Book at page 87.
The Tribunal did indeed put matters to the Applicant who stated that he wanted to respond to the Tribunal’s concerns in writing. The Tribunal noted that the Applicant asked first for a period of six months and then for a period of two months. The Tribunal was unwilling to allow such a lengthy period of time to allow the Applicant to think over his answers and to try to contact his mother back in China to ascertain some facts.
However, the Tribunal stated that it would give the Applicant until 6th May 2009, to provide those comments. The Tribunal stated:
At the hearing the Tribunal repeated that it would give the applicant until 6 May 2009 to provide comments but the applicant asked for the Tribunal to write to him setting out its concerns.[9]
[9] See Court Book at page 88.
As has been made clear, the Tribunal did in fact write to the Applicant in a letter in the form required to comply with s.424A of the Migration Act, and in fact gave him until 7th May 2009 to provide his comments or response.
The Tribunal in its decision referred to Independent Country Information about fraudulent documentation in China and referred to material from the Department of Foreign Affairs and Trade and the Canadian Immigration and Refugee Board.
The Tribunal’s Findings and Reasons
In its findings and reasons, the Tribunal found that the Applicant was a citizen of the People’s Republic of China and assessed his claims against China. That finding was made on the basis of the Applicant’s claims and his Chinese passport. However, the Tribunal expressed considerable scepticism about the Applicant’s credibility. The Tribunal said:
However, due to the inconsistencies and contradictions in the applicant’s claims and statements as well as implausibilities, which are of such a magnitude that they indicate that the applicant’s claims as set out above are not truthful, the Tribunal did not find the applicant to be a credible witness.[10]
[10] See Court Book at page 89.
The Tribunal set out in some detail the reasons why it had formed that adverse view of the Applicant’s credibility and they extend from [75] on page 89 of the Court Book through to [96] on page 93. The Tribunal found that there was no plausible evidence before it that the Applicant had suffered persecution in the People’s Republic of China because of his political opinion, his imputed political opinion, his membership of a particular social group, his religion or his imputed religion or for any other Convention reason.
The Tribunal was also not satisfied that there was a real chance that he would suffer persecution for a Convention reason if he were to return to the People’s Republic of China and affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
In the application for judicial review, the Applicant sets out two grounds of review in which he claims that the Tribunal fell into error. They are as follows:
(1) The decision involved an error of law in that: the Tribunal Member did not consider that it is difficult to provide evidence to demonstrate that the applicant has suffered persecution in PRC because of his membership of a particular social group.
(2) The Tribunal failed to carry out its statutory duty as the Tribunal Member could not demonstrate that I do not face a risk of being prosecuted if I return to China.
Submissions
The Applicant has attended Court and has made oral submissions in which he has told the Court that the Department of Immigration and Citizenship made a decision in his case too fast because it takes a lot of trouble to collect information. He said that one has to go back to China to collect this evidence but he cannot go back to China, thus it is very difficult to prove that he is a refugee for the reasons stated.
In oral submissions on behalf of the Minister, Ms Hooper, who appeared for the Minister, submitted that the Applicant’s submissions related largely to the Applicant’s first ground and noted that he complained about the delegate’s decision, which of course is not under review. She submitted that the Applicant had ample opportunity to obtain this information and referred to the application for review to the Refugee Review Tribunal. That document advises applicants:
You should provide with this application any information, documents or submissions that you want the Tribunal to consider in support of your application, or send them to us as soon as possible.[11]
[11] See Court Book at page 51.
It was also submitted that the Court should find that the letter to the Applicant acknowledging his application, which can be found at page 53 of the Court Book, was not a letter written under the provisions of s.424 of the Migration Act and it would follow that the Court should distinguish the decision in SZNAV v Minister for Immigration and Citizenship[12] on the basis that the form of the letter that attracted adverse criticism in SZNAV is significantly different from that in the decision currently under review. It is submitted that the form of the letter bears substantial similarity to the letter considered by the Full Court in MZXRE v Minister for Immigration and Citizenship[13].
[12] [2009] FMCA 693
[13] [2009] FCAFC 82 at [7] and [8]
I was also asked to follow my own decision in SZNNJ v Minister for Immigration & Anor[14] where at [32] to [37] I distinguished the letter of acknowledgement in that decision from that which had been referred to in SZNAV. It is perhaps not the hardest task for an advocate to persuade a Court that it should follow one of its earlier decisions.
[14] [2009] FMCA 752
It is also submitted on behalf of the Minister that neither of the Applicant’s grounds of review had been made out.
In respect of the first ground, the ground related to the Applicant’s complaint that the Tribunal had refused to give him either six months or two months to respond in writing to the concerns put to him at the hearing, the submission is that the Tribunal plainly considered the Applicant’s request and gave cogent reasons for its rejection, and, further, that the Tribunal has a wide discretionary power as to the manner in which it shall conduct the review, including the power in sub-section 427(1)(b) of the Act to adjourn and review from time to time. That power to adjourn is couched in permissive and not mandatory terms, and the Tribunal is generally under no duty to use its permissive statutory powers.
Further, it is submitted, that the Tribunal gave meaningful consideration to the Applicant’s request for additional time to provide a response to its concerns, up until 7th May 2009 in fact, and the Applicant provided his written response well in advance of that deadline. As to the Applicant’s second ground, it was submitted that the Tribunal does not have to rebut a presumption that an applicant faces a real chance of persecution.
The Court was referred to the decision of Ryan, Jacobson and Lander JJ in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs[15] where their Honours said that sub-section 65(1) of the Migration Act:
…does not require the decision maker to reach decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of the visa in question have been satisfied.
[15] [2004] FCAFC 225 at [15]
The Court was also referred to the decision of Heerey J in Selvadurai v Minister for Immigration and Ethnic Affairs[16] where his Honour held that a decision-maker does not have to have rebutting evidence available before he or she can lawfully hold out that a particular factual assertion by an applicant is not made out. It was submitted, therefore, that no jurisdictional error appears and the Tribunal decision is a privative clause decision.
Considerations
[16] (1994) 34 ALD 347; [1994] FCA 1105 at 348
Ground 1
In dealing with those considerations, the Applicant’s ground one claims that the decision involved an error of law because the Tribunal Member did not consider that it is difficult to provide evidence to demonstrate that the Applicant had suffered persecution in the People’s Republic of China because of his membership of a particular social group, in this case, the Falun Gong practitioners.
The Applicant had provided a statement to the Department when he applied for his protection visa on 28th November 2008. He was invited to attend an interview on 28th January 2009 but did not attend. No explanation has been given for his failure to attend the interview, but the application for a visa was refused the following day.
It would have been open to the Applicant to provide further material when he submitted his application for review to the Refugee Review Tribunal, which application was received by the Tribunal on 2nd March 2009. However, all that was provided was the required copy of the delegate’s decision refusing the application for a visa. The Tribunal acknowledged receipt of his application in a letter sent out on 3rd March advising him:
If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.[17]
[17] See Court Book at page 53.
He did not do so. He was invited to attend a Tribunal hearing and he attended where matters were put to him under the provisions of s.424AA of the Act. He asked if he could reply in writing. Initially, he asked for a six month period of time, which was refused, and then two months that was also refused. What the Tribunal did do, however, was say that it would write to him after the hearing and give him until 6th May 2009 to provide that information. The fact is that 6th May 2009 was almost a calendar month after the hearing.
The Tribunal’s letter was sent out dated 14th April 2009 and it gave the Applicant until 7th May 2009 rather than the 6th May 2009 to provide the information which was set out, in my mind, most clearly. A couple of matters arise from this letter. First of all, the letter follows on from the matters put to the Applicant at the hearing which was clearly an effort by the Tribunal to comply with s.424AA of the Act. The letter that was written to the Applicant after the hearing was not required by s.424AA.
The Applicant had indicated at the hearing that he wanted time to reply in writing and he was told at the hearing that he could have until 6th May 2009. The Tribunal however, and in my view, for more abundant caution, elected to write to him on 14th April 2009 and couched that letter in terms of s.424A of the Act and incidentally gave him a further day to reply.
Now, it may well be that there was nothing in any of the material referred to by the Tribunal in its letter that came strictly within the purview of sub-section 424A(1) of the Act. What was referred to was material provided by the Applicant when applying for a protection visa. What he said in his evidence to the Tribunal hearing and what the Tribunal considered were inconsistencies, contradictions and implausibilities in the Applicant’s account. It would appear to me, that what was contained in the application for a protection visa and what was put to the Tribunal at the hearing, were both excluded from the operation of sub-section 424A(1) by sub-section 424A(3)(b)(ba).
It is also well established that implausibilities, inconsistencies and contradictions in the evidence are not information for the purpose of sub-section 424A(1). This has indeed been held by the High Court of Australia in SZBYR v Minister for Immigration and Citizenship[18] It can be argued that the nature of the material referred to in the Tribunal’s letter, therefore, did not come within s.424A of the Migration Act.
[18] [2007] HCA 26
In my view, however, there is no error by the Tribunal in applying the provisions of s.424A of the Act in a circumstance when it is not strictly necessary. The error would be in not applying the provisions of s.424A of the Act when it is necessary, but that is not the case here. Whether or not it was necessary for the Tribunal to act under the provisions of s.424A of the Act, it did so and it did not fall into jurisdictional error when it did so.
I am of the view that the Applicant’s first ground is not made out. The Tribunal considered the Applicant’s evidence, it gave him a reasonable amount of time to come up with material or arguments to meet the concerns expressed by the Tribunal and it did not fall into error by misapplying its discretion in the circumstances.
It would, in my view, have created difficulties for the Tribunal if it had given the Applicant a period of six months to provide the information that was sought because the Tribunal is obliged under s.414A of the Act to review a decision in an application for review validly made under s.412 and record that decision under s.430 within 90 days, starting on the day on which the secretary gave the registrar the documents that sub-section 418(2) requires the secretary to give to the registrar.
Ground 2
The Applicant’s second ground claims that the Tribunal failed to carry out its statutory duty, as the Tribunal Member could not demonstrate that he did not face a risk of being prosecuted or persecuted if he were to return to China. It is well established that it is not required of the Tribunal to come up with evidence rebutting the Applicant’s claims. As was pointed out in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs at [15], section 65 does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established.
If the decision-maker is not affirmatively satisfied that the criteria for the grant of the visa have been satisfied, then the decision-maker, in this case the Tribunal, must refuse the application.
The fact is that the Applicant did not provide to the Tribunal material, either documentary form or in his oral evidence, sufficient to satisfy the Tribunal that he was a person to whom Australia has protection obligations under the Refugees Convention. Accordingly, the Tribunal found that the Applicant did not satisfy the criterion set out in sub-section 36(2)(a) for a protection visa.
It is established, and has been established as long ago as the decision in Selvadurai v the Minister for Immigration and Ethnic Affairs, that the Tribunal does not have to have rebutting evidence available before it can find that it is not satisfied.
In my view, both of the Applicant’s grounds have not been made out. I am already of the view that the Tribunal did not fall into error in its application of s.424A of the Migration Act.
The Court has been asked to distinguish the circumstances of this case from that which applied in SZNAV v Minister for Immigration and Citizenship. It has also been put to the Court that the Minister does not concede that SZNAV has been correctly decided[19]. In this case, however, I am of the view that SZNAV can be distinguished.
[19] Since this matter was heard, the Full Court of the Federal Court has upheld the Minister’s appeal in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109
What the Tribunal’s letter dated 2nd March 2009, acknowledging receipt of the application for a review, told the Applicant was that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. That is very different in its text from the letter that drew adverse criticism from the Court in SZNAV. Indeed, it is submitted correctly that the letter is more along the lines of that which as found by North and Rares JJ in MZXRE v Minister for Immigration and Citizenship at [7] and [8] not to amount to an invitation to the appellant before their Honours to give additional information within the meaning of sub-section 424(2) of the Act.
I have, as has been brought to my attention, made a similar finding in another matter, namely, SZNNJ v Minister for Immigration & Anor at [32] to [37]. In my view, this is a case that is similar in that respect to SZNNJ, and I distinguish SZNAV.
Conclusion
I have read through the Tribunal decision thoroughly, along with the supporting material. I am mindful of the fact that the Applicant in this matter is not legally represented. I am not able to discern any arguable ground for jurisdictional error.
As has been held on numerous occasions, in the absence of jurisdictional error a decision of the Refugee Review Tribunal will be a privative clause decision as defined by sub-section 474(2) of the Migration Act. As it is a privative clause decision, the remedies of declaration and an order in the nature of prohibition, which is sought by the Applicant, are not available. Similarly, under sub-section 474(1), remedies such as certiorari and mandamus would not be available.
It follows that the Court must dismiss the application. There is an application for costs on behalf of the First Respondent, the Minister for Immigration and Citizenship. The Applicant has been unsuccessful in his claim, and it is appropriate for the Court to make a costs order. The amount sought is $3,200.00. That is significantly below the amount provided by the scale in the Federal Magistrates Court Rules.
The Applicant has told the Court that he does not have the money to pay that. He said that he does work from time to time and he works by helping out in a restaurant. Whilst that is not a reason for not making an order for costs, it is a matter that the Court will take into account in considering whether time to pay should be allowed.
In my view, this is an appropriate matter to make an order for costs. In my view, the sum of $3,200.00 is an appropriate figure, and if I may say so, a modest one. Noting the Applicant’s submissions about his financial situation, I will allow four months to pay the costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 1 September 2009
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