SZOHP v Minister for Immigration
[2010] FMCA 452
•8 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOHP v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 452 |
| MIGRATION – Refugee Review Tribunal – whether there was a denial of procedural fairness – Tribunal not required to uncritically accept applicant’s claims – applicant seeking impermissible merits review – no denial of procedural fairness – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 |
| Applicant: | SZOHP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 715 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 8 June 2010 |
| Date of Last Submission: | 8 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2010 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr J Pinder |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application made on 1 April 2010 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 715 of 2010
| SZOHP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from transcript)
I have before me today an application made on 1 April 2010 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 March 2010, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
In compliance with orders made at the First Court Date in this matter the Minister has put a bundle of relevant documents before the Court (“the Court Book” – “CB”).
Background
The applicant is a citizen of the People’s Republic of China (“China”) who has identified herself as being of Korean ethnicity or background. She arrived in Australia on 19 August 2009 with a family sponsored visitor visa. She applied for a protection visa on 24 September 2009 (CB 1 to CB 39 with annexures). The applicant was assisted by a registered migration agent (CB 9, CB 27 to CB 29).
Claims to Protection
The applicant’s claims to protection were initially set out in a statement annexed to her protection visa application (CB 31 to CB 33). The applicant claimed to be from Jilin Province of China and of Korean ethnicity. She is married and has two daughters. She claimed that since 2006 she ran a Korean restaurant with her husband.
The applicant claimed to fear harm if she were to return to China because of the assistance that she had given to North Korean refugees in the past. In her initial statement she made reference to two such occasions where she protected, fed and sheltered such refugees in her restaurant. She claimed to have hidden them from the Chinese authorities. She also claimed in her statement that because of this assistance she had been caught, detained and fined on two occasions. She had been imprisoned for one night until her husband paid a fine to secure her release. She further claimed harassment from the authorities, and that she had been put on what was described as a “black list”.
The applicant came to Australia as a visitor in July 2008, sponsored by her sister. Her husband and two daughters remained in China. She left Australia and then returned in August 2008, again as a visitor. She subsequently applied for a protection visa. Since coming to Australia the applicant claimed that her husband told her that policemen often go to the restaurant and threaten him, and have threatened to put the applicant in prison for being anti-revolutionary and opposing the government.
The Delegate
The applicant attended an interview with the Minister’s delegate on 1 December 2009. The delegate found the applicant’s oral “testimony” to be “seriously inconsistent” with her written claims. Some explanations that she provided were found to be far fetched and implausible. This raised doubts as to the applicant’s credibility and the genuineness of the incidents claimed to have occurred in China (CB 56 to CB 57).
In relation to the delegate’s description of what the applicant said as “testimony”, I should just note that it appears that the delegate interviewed the applicant pursuant to s.59 of the Act. There is no evidence before the Court that the applicant’s statements at interview were given under any oath or affirmation such as to characterise what she said as “testimony”. Nonetheless the delegate’s decision is not subject to review in the current circumstances before this Court. Therefore nothing that is of consequence or relevance to the current proceedings flows from what could be said to be a lay person’s mis-description of the character of what the applicant said.
The delegate did not accept that what the applicant claimed revealed a requisite Refugees Convention nexus. The delegate found that the applicant, at best, had committed a crime against China’s law. The relevant law was described as a law of general application and, therefore, the essential and significant reason for the harm feared was not related to the Refugees Convention (CB 59 to CB 60).
The Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 21 December 2009 (CB 86 to CB 89). She continued to be assisted by the same migration agent (CB 87).
By letter dated 14 January 2010 the applicant was invited to comment on certain information that the Tribunal said it considered would be the reason or a part of the reason for affirming the decision under review (CB 99 to CB 101). This information related to the applicant having been granted a visitor visa for Australia in June 2008, entry to Australia in July 2008, and her return to China on 1 October 2008. The information also related to and involved the grant of another visitor visa in July 2009 and her subsequent entry again to Australia on 19 August 2009. The Tribunal also referred to information concerning her application for a protection visa in September 2009.
In its letter the Tribunal advised that the relevance of the information was that it may cause it to find that the applicant did not have a genuine fear of persecution in China when she arrived in Australia, and that this went to the issue of her credibility.
The Tribunal also referred to various statements that the applicant had made to the delegate at the interview, to inconsistencies in her claims as between what she told the delegate and her written statement, and internal inconsistencies in what she told the delegate. This also was explained as being information relevant to the question of the credibility of her claims.
The applicant responded in writing by a statement dated 25 January 2010 (CB 104 to CB 106).
The Tribunal found adversely to the applicant’s credibility ([60] at CB 136). This was based on inconsistencies in her written and oral evidence. Further, the Tribunal found that she had difficulty in explaining some of her claims, and that her failure to disclose “many details or claims in her initial application” also affected her lack of credibility ([61] at CB 137). This was a reference to a number of significant matters that were not put in her initial statement nor put to the delegate, but emerged before the Tribunal at the hearing. The Tribunal set out its specific concerns in this regard at some length in its decision record ([62] at CB 137 to CB 140).
The Tribunal rejected the applicant’s explanations for many of the inconsistencies in her evidence and claims. It noted that the applicant was assisted by a migration agent throughout the process of application for the protection visa and application for review and would, therefore, have had the opportunity to have appreciated the significance of consistency in the making and pressing of her application ([63] at CB 140).
Based on the above the Tribunal rejected the applicant’s factual account of what she said had occurred in China. It found that there was no real chance of a well-founded fear of persecution if she were to return to China and therefore affirmed the delegate’s decision.
Application to the Court
Before the Court today the applicant appeared in person. She was assisted by an interpreter in the Korean language. Mr J Pinder appeared for the respondent.
The application put before the Court is in the following terms:
“1. RRT did not trust the evidences such as photos and documents I provided. I felt unfair treatment.
2. The Tribunal failed to consider me that I would face hardship and persecution in my country
3. RRT did not give me a fair decision. they did not trust me. they thought I did not tell the truth.”
Before the Court
When the opportunity was provided to the applicant today as to whether there was anything that she wished to put to the Court in support of her application she responded that she had nothing to say. When I explained to the applicant that the relevant issue before the Court today was to consider whether the Tribunal had made an appropriate legal error in its decision the applicant was still unable to further assist the Court. When asked why she had come to the Court she stated that it was because she wanted to be recognised as a refugee.
I explained to the applicant that in the relevant Australian legal system such a question was ultimately for the Tribunal and not for the Court. The Court could only relevantly be concerned with the question of whether the Tribunal’s decision was affected by what I had described as a “legal mistake”. The applicant did explain that she made her application to this Court by consulting a lawyer in Campsie who assisted her with the drafting of the application to the Court. She said she found this lawyer by looking at a sign in Campsie, which presumably was the sign or notice of this lawyer indicating his capacity to assist.
I have already recorded my concern in similar cases of this type, and do so yet again in relation to persons in the community who appear to assist and, it must be said, prey on vulnerable people such as the applicant. They purport to provide assistance which ultimately is of no value or worth or any assistance to unfortunately a large number of applicants who regularly appear before this Court. I have asked that Mr Pinder refer this to those relevant persons in the Minister’s department, that they investigate the circumstances of this applicant’s dealings with this person whom she claims to be a lawyer.
Consideration
Turning now to each of the grounds such as they are as stated in the application to the Court. I note in this regard the written submissions provided by Mr Pinder.
Ground One
In ground one reference is made to photos and documents that the applicant claimed to have provided to the Tribunal. The material before the Court reveals that, unless the applicant is referring to her written statements and her passport, no other documents are apparent as having been provided to the Tribunal or for that matter to the Minister’s department.
The reference to photos remains unexplained when regard is had to the relevant material in the Court Book. If the reference to documents points to the applicant’s written statement provided in support of the application then such a complaint does not succeed in showing relevant error on the part of the Tribunal.
The applicant’s complaint that the Tribunal did not trust her “evidences”, that is her written statement, and that this resulted in unfair treatment must first be seen in light that the Tribunal did have regard to all of the applicant’s claims as made both orally and in evidence before it and as made in the written statements provided to both the delegate and the Tribunal. I agree with Mr Pinder that when properly read the applicant’s complaint in ground one is to assert that the Tribunal should have accepted her claims, and because it did not do so its decision was therefore unfair.
As I said earlier the Tribunal’s decision turned on its comprehensive rejection of the credibility of the applicant’s claims and what she had said and put in support of those claims. It is the case that in matters of this type the Tribunal is the relevant finder of fact. This includes findings on credibility. As has often been cited, as McHugh J said in the case of Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67], the Tribunal in this context is the decision-maker or the finder of fact par excellence.
Further, very clear authorities establish the proposition that the Tribunal does not have to uncritically accept an applicant’s evidence and claims either in part or indeed in total (Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J). On the material that is before the Court it can be said that the Tribunal made findings which were reasonably open to it to make on what was before it, and for which it gave reasons. There is no error in law simply because the Tribunal makes findings with which the applicant disagrees.
As to the applicant’s complaint that this was unfair, it is, as Mr Pinder correctly submits and as I sought to explain to the applicant, that the Court is concerned with whether the decision was lawfully made. Not whether it was fair or otherwise. See Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, and as that case has been cited with approval and relied upon in many authorities since that judgment was delivered in 1990 (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) at [25]).
In all therefore ground one does not reveal legal error on the part of the Tribunal.
Ground Two
Ground two asserts that the Tribunal failed to consider that the applicant would face hardship and persecution if she were to return to China. On what is before the Court this complaint cannot succeed.
The Tribunal plainly turned its mind to the critical question of whether the applicant would face a real chance of persecution if she were to return to China. It set out in its decision record in the usual unexceptional terms the relevant law that applies to the test that it was required to consider. That is, whether there was a real chance that the applicant would be persecuted for any Convention reason if she were to return to China at the time of making its decision or in the reasonably foreseeable future.
The Tribunal considered the applicant’s claims and evidence in light of that test. It found relevantly that the applicant would not face hardship and persecution in China because it did not believe what the applicant had said in support of her claims to fear harm to be true.
In the circumstances that are before the Court and in light of the Tribunal’s comprehensive analysis and findings and reasons, the applicant’s complaint can only be seen as an appeal to this Court to intervene and substitute its own findings as to the merits of her claims to be a refugee. The Court cannot engage and is not permitted to engage in such a review of the merits of the applicant’s claims (Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Ground two does not succeed.
Ground Three
To the extent that in ground three the applicant complains that the Tribunal found that she did not tell the truth and that this was generally unfair, I have already dealt with this complaint. But to the extent, as Mr Pinder suggests, that this may also be a complaint that the Tribunal failed to afford the applicant procedural fairness then I note the following.
First, this is a case to which s.422B of the Act applies. This means that the matters that are set out in Division 4 of Part 7 of the Act are said to be the exhaustive statement of the natural justice hearing rule. I make that statement noting that it excludes matters of bias.
In any event the applicant was invited to a hearing pursuant to s.425 of the Act. I bear in mind what was relevantly said by the High Court in SZBEL in relation to the Tribunal’s procedural fairness obligations pursuant to a hearing conducted as a result of the obligation in s.425.
The applicant has not put any evidence before the Court to challenge the Tribunal’s own account of what it said occurred at the hearing with her. For example, she has not put before the Court any transcript of that hearing. In these circumstances, as was explained by a Full Federal Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241, it is not open to the Court to draw any inferences as to what may have otherwise happened at the hearing. On that basis the Tribunal’s account reveals that the issues that were determinative in its analysis, the issues that disposed of the review, were raised at the hearing with the applicant.
It is quite clear that the Tribunal did more than just “sufficiently indicate” (SZBEL at [47]) to the applicant its concerns about the credibility of what she was saying. Again, on what is before the Court the applicant was given the opportunity to explain her evidence in light of the Tribunal’s concerns. The Tribunal ultimately considered her explanations. That it did not accept those explanations does not reveal some failure of procedural fairness in regard to the applicant.
Further with regard to s.424A of the Act information that the applicant put in writing to the delegate and in writing to the Tribunal falls within the exceptions set out in s.424A(3)(b) and (ba) respectively from the obligation in s.424A(1). What the applicant told the Tribunal at the hearing falls within the exception set out in s.424A(3)(b). Of course, what the applicant told the delegate at the interview is not caught by any of the exceptions in s.424A(3). But the Tribunal discharged its relevant obligation pursuant to s.424A(1) by in fact writing to the applicant and putting that information to her in writing for her comment (see CB 99 to CB 101).
Further, in its letter the Tribunal gave sufficient particulars of the information such that the applicant could reasonably understand what the information contained. Further, the Tribunal told the applicant of the relevance of the information to the decision that it could make.
I cannot see that any other breach of the relevant parts of the procedural code is evident in this matter. Therefore in all ground three does not succeed.
Conclusion
For the applicant to succeed before the Court today, at the very least the Court would need to find that the Tribunal’s decision is affected with jurisdictional error. I cannot see such error in what is before me. I will therefore make an order dismissing the application that has been made to this Court.
Costs
In these circumstances, as has been foreshadowed in the Minister’s written submissions, the Minister asks that I also make an order that the applicant pay some of the Minister’s legal costs that have been incurred in responding to the application. Mr Pinder has asked that I make such an order fixed in the amount of $4,300.
In my view it is appropriate that an order for costs be made in this matter. There is nothing before the Court nor has the applicant despite opportunity put anything to the Court to argue against the making of such an order as would be made in the normal course of events.
The relevant Schedule to the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) provides that in cases of this type the Minister could have sought an amount up to $5,865. I take the view that what is set out in the Rules is a useful guide as to generally what would be considered reasonable in matters of this type. I note therefore relevantly that in this case the Minister seeks a far lesser amount.
But I am also separately satisfied that the amount sought is a reasonable amount when I have regard to the actual work that has been done by the Minister’s solicitors in responding to the application that this applicant has brought to this Court. I will therefore make the order in the amount sought by the Minister.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date:
0
9
1