SZNXO v Minister for Immigration - [2009] FMCA 1128

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNXO v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1128

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

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); 424A(3)(ba); 474; pt.8 div.2

WAJR v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 204 ALR 624
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZNXO

First Respondent:	MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent:	REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2286 of 2009

Judgment of:

Emmett FM

Hearing date:

16 November 2009

Date of Last Submission:

16 November 2009

Delivered at:

Sydney

Delivered on:

16 November 2009

REPRESENTATION

Applicant appeared in person assisted by a Mandarin interpreter

Counsel for the Respondent:

Mr Y. Shariff

Solicitors for the Respondent:

Ms K. Hooper, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2286 of 2009

SZNXO

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 26 August 2009 and handed down on 27 August 2009.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on about 3 June 1998, having departed legally from Shanghai on a passport issued in his own name and a tourist visa which ceased on 20 June 2009.
On 22 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 10 June 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 16 June 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 26 August 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.
On 18 September 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 brief claims in support of his protection visa application including that, prior to coming to Australia: he stayed at home between 1966 and 1970 “due to Cultural Revolution”; he was a “farm worker” from 1970 to 1979, a “General worker” from 1979 to 1981 and a casual worker from 1983 to 1998; and, he was detained in 1997 for 15 days in the County of Shanghai Choong Ming County Detention Centre, Shanghai.

The Tribunal’s review and decision

On 16 June 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant’s claims, the Delegate’s decision and the decision of the Tribunal are accurately summarised by counsel for the first respondent, Mr Shariff, as follows:
“On or about 22 April 2009, the applicant lodged an application for a protection (Class XA) visa: CB 9-48. The applicant provided no written claims of persecution in support of his protection visa application: see CB 68.2. During an interview conducted with an officer of the Department, the applicant essentially claimed that he had suffered persecution in China because of his political activities: CB 68.3. The applicant claimed that in 1997 he and a friend were involved in a protest in Shanghai: CB 68.4. They were protesting against the fact that during the Cultural Revolution they were forcibly sent to work in the countryside and were deprived of an education which had prevented them from obtaining permanent employment: CB 68.4. They planned to take their protest to Beijing, but the applicant was admitted into hospital when he hurt his leg during an attempt to flee from the PSB: CB 68.5. The applicant claimed that he had previously been detained twice by the PSB in Shanghai: CB 68.5.
On 10 June 2009, a delegate of the first respondent refused to grant the applicant a protection visa: CB 62-77. The delegate was not satisfied that the applicant had a well founded fear of persecution because, amongst other things, the applicant had not applied for a protection visa for over 10 years and the applicant had travelled to Australia on a genuinely issued Chinese passport without intervention from the relevant Chinese authorities: CB 75.6-9.
On or about 16 June 2009, the Refugee Review Tribunal (the Tribunal) received the applicant’s application for a review of the delegate’s decision: CB 78-83. By letter of the same date, the Tribunal acknowledged receipt of the application and invited the applicant to provide documents, information or other evidence that he wished the Tribunal to consider: CB 87-88.
On 19 June 2009, the applicant was invited to attend a hearing before the Tribunal on 6 July 2009: CB 93-94. The applicant attended this hearing: CB 98-100.
By letter dated 15 July 2009, the Tribunal invited the applicant to comment on or respond to information that the Tribunal considered would, subject to the applicant’s comments, form the reason or part of the reasons for affirming decision under review: CB 106-8. The information related to inconsistencies in the applicant's evidence as to the times and locations at which the applicant alleged that he had been detained: CB 107. By letter dated 23 July 2009, the applicant responded to the Tribunal's letter: CB 109-110.
On 26 August 2009, the Tribunal handed down a decision which affirmed the delegate’s decision: CB 116-130.
The Tribunal’s Decision
The Tribunal’s decision record sets out the applicant’s claims (CB 119[23]-122[35]) and an outline of the evidence that the applicant gave at the Tribunal hearing (CB 122[36]-125[58]). During the Tribunal hearing, the applicant claimed that he had become baptised as a Christian and alleged that he would not be able to practise his religion in China: CB 125[53].
The Tribunal accepted that the applicant had been sent to the countryside and that he had experienced problems in obtaining permanent employment, but the Tribunal did not accept the applicant's other claims on the grounds that he was not a credible witness: CB 127[66]. In rejecting the applicant’s claims, the Tribunal:
(a) held that the applicant had provided inconsistent evidence about the times and locations at which he had been allegedly detained: CB 128.1-6;
(b) was not satisfied that the applicant had been involved in an anti‑government meeting in 1997 or prior to that time: CB 128.7;
(c) accepted that a friend may have organised a false reference, passport and visa for the applicant, but did not accept that these documents had been organised in an effort to assist the applicant abscond from the Chinese authorities; the Tribunal held that the applicant travelled to Australia to earn money and not because he was in fear of persecution: CB 128.8-129.2;
(d) was not satisfied that the Chinese authorities were adversely interested in the applicant: CB 129.2;
(e) noted that the applicant had not departed from China until June 1998, which was some time after he had allegedly suffered persecution at the hands of the Chinese authorities: CB 129.3;
(f) did not accept the applicant's explanations as to why he had remained in Australia for over 10 years before making a protection visa application: CB 129.4; and
(g) was not satisfied that the applicant had participated in church activities in Australia otherwise than for the purposes of strengthening his claims: CB 129[69].
Accordingly, the Tribunal concluded that the applicant did not have a well‑founded fear of persecution for any Convention reason: CB 129[71].”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 16 October 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 he may wish to rely was verified by affidavit. The Applicant was also directed to give notice to the first respondent and the Court if he wished to rely on recordings of the Tribunal hearing and to provide submissions in support of his application.
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. I also provided to the Applicant, headed in his own language, the contact details of legal services providers and interpreting and translation services. I endeavoured to explain to the Applicant the limited role of this Court in reviewing the Tribunal’s decision and that the Court had no power to interfere with the Tribunal decision unless satisfied that the Tribunal’s decision was affected by a mistake that goes to its jurisdiction.
At the directions hearing, I also provided to the Applicant a copy of the applicable costs schedule of the Court and explained to the Applicant the consequences that would follow for him, if a costs order was made against him. Namely, that whilst ever any costs order remained unpaid, it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. I then confirmed with the Applicant that he wished to continue with his application.
At the commencement of the hearing before this Court, the Applicant confirmed that he relied on the grounds contained in an application filed on 18 September 2009 as follows:
“1. Jurisdictional error.
2. Natural justice denied.
3. Mental health reports not taken into consideration.”
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 confirmed that he had filed no evidence or submissions in support of his application, other than the accompanying affidavit required by statute.
In support of grounds 1 and 2 of his application, the Applicant made the new complaint that the Tribunal member:
(i)started to ask him questions when his agent was not there, and
(ii)asked him a lot of questions which the Tribunal did not allow the Applicant to finish and cut in on the Applicant.
The Applicant sought leave to give sworn evidence to this effect. The application for leave was opposed by the first respondent. In separate Reasons, the Applicant’s application for leave to give oral evidence was refused.
In relation to (i) above, that the Tribunal member began to question the Applicant without the Applicant’s migration agent being present, such an allegation does not by itself establish any jurisdictional error on the part of the Tribunal. The bundle of relevant documents, marked Exhibit 1R, discloses that, on the “RRT Hearing Record”, the Applicant’s migration agent was “Not present, is expecting”. The Applicant had the assistance of an interpreter through which he gave evidence to the Tribunal.
The Tribunal’s decision record makes clear that, at the end of the hearing, the Tribunal gave the Applicant a further opportunity to discuss with his advisor matters raised by the Tribunal and to provide post-hearing submissions in writing. The Applicant was also provided with a recording of the Tribunal hearing. The Tribunal also noted that it told the Applicant that it would contact the advisor to let her know that the Tribunal would be sending a s.424A letter. True to its word, on 15 July 2009, the Tribunal wrote to the Applicant’s advisor enclosing its s.424A letter to the Applicant. On 23 July 2009, the Applicant’s advisor responded to the Tribunal’s letter.
In the circumstances, notwithstanding that the Applicant’s advisor was not present at the Tribunal hearing, the Applicant was given an opportunity post-hearing to discuss with his advisor matters raised by the Tribunal at the hearing and to provide further written submissions. The Tribunal also identified its particular concerns in its s.424A letter and noted the Applicant’s response. There was no complaint in the response about the Tribunal proceeding with the hearing in the absence of the Applicant’s migration agent. Nor is there any evidence before this Court of any request made by the Applicant or the advisor made to the Tribunal prior to the hearing that the hearing should not commence without the Applicant’s migration agent being present.
Accordingly, there was no denial of natural justice to the Applicant arising from the Tribunal conducting the hearing with the Applicant without his advisor being present.
In relation to (ii) above, the Applicant’s complaint that the Tribunal asked the Applicant many questions which it did not allow him to finish and cut in on his answers, there is no evidence before this Court to support such an allegation.
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 16 October 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 he 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, the Court accepts 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.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored the Applicant’s evidence with him in some detail. The Tribunal noted that it asked the Applicant what he believed would happen if he returned to China. The Tribunal noted matters of concern it had put to the Applicant, in particular, that the Applicant had arrived in Australia in 1998, yet did not lodge a protection visa application until 22 April 2009 when he was detained by the Department. The Tribunal also noted that it raised with the Applicant that his departure from China on a passport in his own name indicated he was not of adverse attention to the Chinese authorities. The Tribunal noted the Applicant’s responses. As mentioned above, the Tribunal put further concerns to the Applicant in writing post-hearing to which the Applicant responded. The Tribunal noted the Applicant’s responses to all the concerns it raised.
Moreover, the Applicant raised a new claim before the Tribunal of his baptism in Australia whilst in detention and attendance at church “sometimes” prior to his detention.
There was no other evidence provided to this Court of any complaint made by the Applicant to the Tribunal, either during the hearing or in his post-hearing submission, about the manner in which the Tribunal Member conducted the hearing.
In the circumstances, the evidence before this Court as disclosed in Exhibit 1R makes clear that the Applicant had every opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review, including raising a new claim.
Accordingly, there was no denial of natural justice to the Applicant as asserted and grounds 1 and 2 are not made out.
Ground 3 of the application asserts that the Tribunal did not take the Applicant’s mental health reports into consideration. However, there is no evidence at all before this Court of any report in respect of the Applicant’s mental health. The Applicant told the Court that it was his recollection that he had provided a copy of a mental health report with his application for a protection visa. However, there is no mention of any such report in either the Delegate’s decision or the Tribunal’s decision. Nor is there any evidence before this Court of the nature of any such report.
As referred to above, at the end of the Tribunal hearing, the Applicant was invited to provide written post-hearing submissions and was sent a letter from the Tribunal pursuant to s.424A of the Act to which the Applicant responded. There is no mention in the Applicant’s response of the existence of any mental health condition. The Tribunal’s decision record makes no mention of any such issue. A fair reading of the Tribunal’s summary of the exchanges it had with the Applicant at the hearing about his evidence does not suggest that the Applicant had any difficulty in responsively answering the Tribunal’s questions and otherwise giving evidence and presenting arguments in support of his claims.
As stated above, the Applicant has not provided to this Court any evidence of any existing mental condition, let alone any report that he claims to have given to the Delegate. The Applicant has had sufficient time to provide to the Court evidence of any such existing condition.
I accept the submission of counsel for the first respondent that, even if the Applicant was, or is suffering from any such condition, there is no evidence that this matter was drawn to the attention of the Tribunal or that there was anything before the Tribunal to alert it to the possibility that it should make any further enquiry about the Applicant’s state of mind or propose an adjournment of the hearing (WAJR v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [43]-[44] per French J).
Accordingly, ground 3 is not made out.
Otherwise, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant, including the Applicant’s sur place claim; 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 his evidence and noted the Applicant’s responses, including giving the Applicant, post-hearing, a s.424A letter about concerns it had arising from the Applicant’s evidence.
In any event, there was no information before the Tribunal that enlivened the obligations of s.424A(1) of the Act and, therefore, there was no obligation on the Tribunal to take the further step in giving the Applicant a further opportunity to make submissions in support of his review application. It was the “contradictions, inconsistencies and implausibilities” that the Tribunal found to exist in the Applicant’s evidence that led it to find that the Applicant was not truthful or credible in relation to his convention claims. It is well established that the Tribunal’s thought processes are not information for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon, and Crennan JJ in the majority).
Otherwise, the information which formed the reason for the Tribunal affirming the decision under review was information given to the Tribunal by the Applicant for the purposes of his application and the information contained in his protection visa application. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) and s.424A(3)(ba) of the Act.
Otherwise, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its 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).
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 forty-nine (49) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 16 November 2009