SZNTT v Minister for Immigration - [2009] FMCA 1163

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTT v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1163

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Freedom of Information Act 1982 (Cth)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(b);474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Applicant:

SZNTT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1755 of 2009

Judgment of:

Emmett FM

Hearing date:

24 November 2009

Date of Last Submission:

24 November 2009

Delivered at:

Sydney

Delivered on:

24 November 2009

REPRESENTATION

Applicant appeared in person assisted by a Mandarin interpreter

Solicitors for the Respondent:

Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1755 of 2009

SZNTT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 July 2009 and handed down the same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and is married with two sons (“the Applicant”). The Applicant claims to fear persecution from authorities in China because she refused to sign an arbitrary transfer of land she claims she owned with her husband in China.
The Applicant arrived in Australia on 10 December 2007 having departed legally from Shanghai on a passport issued in her own name and a student guardian visa issued on 6 November 2007.
On 23 April 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 2 June 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 10 June 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 7 July 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.
On 22 July 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

The Applicant provided a statement in support of her protection visa application.
The Applicant claimed the government in China was confiscating agricultural land for economic development. The Applicant claimed that she and her husband owned land that they would not agree to sell. They refused to sign a sale agreement despite threats of arrest and detention. The Applicant claimed that their land was confiscated and they were forced to leave their hometown. The Applicant and her husband went into hiding and did not return to their land. As a result of their continued resistance, the Applicant claimed that they had to move residences and “pressures and persecution from local police forced me to wonder (sic) around”. The Applicant said her husband then “left home to other places” and she did not know where he went. The Applicant claimed that, thereafter, she lived with her brothers and sisters. The Applicant claimed that, in 2007, her husband returned, although they did not live together.

The Delegate’s decision

On 15 May 2009, the Applicant attended an interview with the Delegate.
On 2 June 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate accepted that the Applicant may have been a victim of property expropriation by government officials in her hometown where she owned agricultural lands. The Delegate accepted that she refused to sign an undertaking selling her land and that she may have moved from place to place to avoid authorities as a result.
However, the Delegate also noted that the Applicant had never experienced persecution from authorities, although she lived with her sister from 1997 to 2000. The Delegate also had regard to the fact that the Applicant did not have difficulty leaving China and used her own passport with her real name. As a result the Delegate found that the government was not adversely interested in the Applicant.

The Tribunal’s review and decision

On 10 June 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further in support of her application.
On 16 June 2009, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 2 July 2009 to give oral evidence and present arguments.
On 17 June 2009, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”).
On 24 June 2009, the Applicant’s migration agent responded to the s.424A Letter.
On 2 July 2009, the Applicant’s migration agent provided further information in support of her claims to the Tribunal by facsimile, being a timeline of events in China and further information that in 1998 the local government authorities came to her house and demanded she sign documents regarding her land. The letter stated that the Applicant was threatened with arrest and when her father tried to intervene “he was violently pushed by authorities and fell to the ground and he died as a result of head injuries sustained in the fall”.
On 2 July 2009, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:
“At the hearing on 2 July 2009 the Tribunal engaged in a lengthy dialogue with the applicant about her claims. Importantly, at that hearing the Tribunal explained to the applicant that it had a number of concerns with her evidence and that it thought it contained inconsistencies, particularly regarding the dates when various events had occurred.[1] The Tribunal also put the applicant on notice that she had provided no evidence of her land ownership and that she seemed evasive when asked about it.[2] The Tribunal also suggested to the applicant that many years had passed since the claimed events had occurred and the authorities had taken no steps to harm her in that period.[3] The Tribunal explained to the applicant that these things may cause the Tribunal to find the applicant was not a refugee.[4]
…
The Tribunal’s findings and reasons reveal that the Tribunal wholly disbelieved the applicant’s claims. It found that she was not a “witness of credibility”: at [57].
The Tribunal made a positive finding that when the applicant departed China she had no fear of being persecuted and that was the reason she had taken no action in seeking, or inquiring about protection in Australia for sixteen months: at [58]. …
At many points in its discussion the Tribunal repeated its view that the applicant had been untruthful in her claims (at [58], [59], [60], [61] and [65]) before the inevitable conclusion that the applicant was not a person to whom Australia owed protection obligations.”
[1] CB 101 – 104 [38] – [44], [51]
[2] CB 103 at [43]
[3] CB 104 at [49]
[4] CB 104 at [51]

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 19 August 2009, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which she may wish to rely was verified by affidavit. On that occasion, I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal.
At the directions hearing, I referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Court also provided to the Applicant, headed in her own language, the contact details of legal services providers and interpreting and translation services.
At the commencement of the hearing, the Applicant confirmed that she relied on the grounds contained in an application filed on 22 July 2009 as follows:
“1. The RRT Decision is affected by jurisdictional error.
2. The Tribunal erred because it did not issue a s 424A letter to clarify whether the applicant’s sister’s home was in the same region as her hukou or not and therefore whether or not her survival relied on living outside her hukou registrations and area which is forbidden in Chinese law.”
The Applicant confirmed that no further application, evidence or submissions had been filed by her or on her behalf.
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
The Applicant made no relevant or meaningful submission in support of either of the grounds or in support of the application generally. The Applicant said that what she had told the Tribunal was her own experience and was truthful.
Plainly ground 1 is no more than a bare assertion and does not disclose any error capable of review by this Court.
In relation to ground 2, I explained the provisions of s.424A of the Act to the Applicant. I invited the Applicant to explain what she meant by ground 2 of the application as it was not clear to me precisely what ground 2 intended to assert. The Applicant repeated that what she had said to the Tribunal was the truth.
In fact, as referred to above, the Tribunal sent the Applicant a s.424A Letter prior to the commencement of the hearing giving the Applicant information that it said may be part of the reason for affirming the decision under review. However, all the information referred to in the s.424A Letter was information given by the Applicant to the Tribunal for the purposes of the review. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored the Applicant’s claims with her at a hearing in some detail and put to her matters of concern that had arisen from her evidence and noted her responses. The Tribunal had regard to the Applicant’s illiteracy, forgetfulness and depression, however, found that the Applicant was able to present evidence to the Tribunal and that she had been given a meaningful opportunity to do so.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 19 August 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if she wished to rely on recordings of the hearing, however, no step was taken by the Applicant to rely on any such evidence. In the circumstances, I accept as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
Ultimately, the Tribunal was not satisfied that the Applicant had ever owned land in China that was the subject of confiscation by authorities. The Tribunal did not accept that the Applicant had ever been approached by authorities and asked to sign a transfer of land, nor did it accept that, because she refused to sign, she was threatened, harassed or persecuted. The Tribunal did not accept that she left the family home to avoid being harmed by authorities. The Tribunal also found that, had she been of interest to authorities, they could have readily found her. The Tribunal did not accept that she had ever been of any adverse interest to authorities.
In its s.424A Letter, the Tribunal stated that the Applicant had said at a post-location interview that she came to Australia because there was no reason for her to stay in China and that she had divorced her husband, and that, if she returned to China, she would die because people would laugh at her. In her migration agent’s response to the s.424A Letter, the migration agent stated that the Applicant denied saying such things at her post-location interview.
The migration agent’s letter sought a copy of the post-location interview. In its decision record the Tribunal noted that the Applicant had made a request under the Freedom of Information Act 1982 (Cth) shortly before the hearing concerning the post-location interview. However, the Tribunal decided not to postpone making its decision to allow for the documents to be released because the Tribunal placed no reliance on the Applicant’s evidence given in the post-location interview.
I accept the submission of the solicitor for the First Respondent, Ms Rayment that, in circumstances where the Applicant had denied the information and the Tribunal had placed no reliance upon it, there was no error in the Tribunal’s decision not to postpone making its decision to allow for the documents sought under the Freedom of Information Act 1982 (Cth) to be released. A fair reading of the Tribunal’s decision record makes clear that the Tribunal did not rely on the information referred to in the s.424A Letter in relation to the post-location interview.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal made adverse credibility findings in respect of the Applicant based solely on information and evidence provided by her both to the Tribunal and in support of her protection visa application, including her interview with the Delegate. The Tribunal found her evidence to be “inconsistent in many respects” and that on several occasions she became “evasive in her answers”.
In the circumstances, the Tribunal’s findings were open to it on the evidence and materials before it for the reasons it gave, including the adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
As stated in these reasons above, to the extent that ground 2 asserts that the Tribunal should have issued a s.424A letter to the Applicant to clarify whether the Applicant’s sister’s home was in the same region as the Applicant’s and whether her survival relied on living outside her registered area, the ground misconceives the meaning of s.424A of the Act.
To the extent that ground 2 maybe seeking to allege that the Tribunal failed to make further enquiries about the Applicant’s claims, such a complaint is not made out. It is well established that there is no general obligation on a Tribunal to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Moreover, and in any event, the Tribunal also found the Applicant’s delay in seeking protection in April 2009, having arrived in Australia in December 2007, to be “significant” and unsatisfactorily explained. The Tribunal found that, at the time the Applicant left China, she had no fear of persecution. Those findings were also open to the Tribunal on the evidence and material before it and for the reasons it gave. In the circumstances, I accept the submission of the First Respondent that the finding of an absence of subjective fear on the part of the Applicant is fatal to the application for judicial review.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 24 November 2009