SZOJB v Minister for Immigration - [2010] FMCA 512

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOJB v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 512

MIGRATION – Review of decision of Refugee Review Tribunal – findings open to Tribunal to make – Tribunal complied with s.425 obligations – whether information “would be” the reason or part of the reason for affirming delegate’s decision – not information – applicant seeking impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.422B, 424A, 425, 425A, 441A, 441C, 441G

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
Minister for Immigration & Citizenship v SZLFX & Anor [2009] HCA 31; (2009) 238 CLR 507
SZMFZ v Minister for Immigration & Citizenship [2008] FCA 1890
SZMPT v Minister for Immigration and Citizenship [2009] FCA 99
SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721
MZXBQ v Minister for Immigration & Citizenship [2008] FCA 319; (2008) 166 FCR 483
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
SZHTI & Anor v Minister for Immigration & Anor [2006] FMCA 41
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702

Applicant:

SZOJB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 862 of 2010

Judgment of:

Nicholls FM

Hearing date:

15 July 2010

Date of Last Submission:

15 July 2010

Delivered at:

Sydney

Delivered on:

20 July 2010

REPRESENTATION

The Applicant:

In person

Appearing for the Respondents:

Mr B May

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 21 April 2010 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 862 of 2010

SZOJB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 21 April 2010 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 March 2010 which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The Minister has put a bundle of relevant documents before the Court (Court Book – “CB”) from which the following background may be derived.
The applicant is a national of the People’s Republic of China (“China”). She arrived in Australia on 24 November 2007. She applied for a protection visa on 12 August 2009 (CB 1 to CB 34). She was assisted by a migration agent (CB 32 to CB 34).
Her claims to protection were set out in an attached statement (CB 30 to CB 31). The applicant claimed to fear persecutory harm in China because of her membership of an illegal underground Christian church, the “Shouting School”, or the “Shouters”.
The applicant’s relevant account was that her husband was introduced to this church by a friend in May 2005. She started to attend church activities with him in May 2006.
In March 2007 she and her husband assisted the friend to evade the authorities who had put him on a “black list” for organising family church activities. The applicant claimed that on 2 April 2007 she and her husband were arrested because of this assistance. They were interrogated. She was released after one week. Her husband was sentenced to three months hard labour and subjected to re-education.
In November 2007 the applicant came to Australia on a student guardian visa with her son.
Following his release, her husband continued his church activities. In March 2009 she sent church publicity material to him from Australia.
On 15 July 2009 her father told her that her husband had been arrested. In a raid on the house of a church leader the authorities found the materials she had sent to her husband. Her husband was detained and tortured. He told the police she sent him the materials. Her family told her not to return as she would be arrested.

The Delegate

The applicant attended an interview with the delegate on 21 October 2009 (CB 41, CB 54). The delegate refused to grant the visa on 23 November 2009 (CB 44 to CB 56). Amongst other matters, the delegate found the applicant’s answers at the interview in critical respects to be vague and that her claims were contrived.

The Tribunal

The applicant applied for review on 19 December 2009 (CB 59 to CB 62). She continued to be represented by the same migration agent (CB 60). The applicant was invited to and attended a hearing with the Tribunal on 18 December 2010 (CB 71 to CB 73, CB 82).
The Tribunal found the applicant: “… to be completely lacking in credibility” ([90] of the Tribunal’s decision record). This was based on:
1)Her conduct at the hearing. The Tribunal found her: “… often evasive and unresponsive” ([90]).
2)Her answers were: “… vague and generalised.” The only answers which were in any way comprehensive were the key components in her written statement of claims. The Tribunal found that she had memorised this and recited answers that were not responsive of the Tribunal’s questions ([91]).
3)The Tribunal rejected her explanation that this was because she was illiterate ([92]).
4)The delay of almost two years in the lodging of her application after arrival in Australia was not satisfactorily explained ([93]).
5)The Tribunal found the applicant’s evidence as to her religious conviction revealed a complete lack of understanding of Christian beliefs ([96]).
6)The applicant was unable to give a coherent account of her decision to, or reasons for, joining an underground church ([96]).
Given its comprehensive finding as to her lack of credibility the Tribunal rejected the applicant’s factual account in its entirety ([98]-[101]).
As to her conduct in Australia the Tribunal found that she had not sent church materials back to China and had not attended church in Australia ([103]).

Before the Court

The application before the Court is in the following terms:
“RRT did not believe that the evidences provided by me are true. That’s not fair.
RRT use[d] failed cases against my application. They did not believe the whole things I said are true.
RRT did not consider that I would be put in jail if I return. I have risk to go back to China.”
At the hearing before the Court the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Mr B May appeared for the first respondent.
The applicant submitted:
1)She wanted more time to arrange for documents to be sent from China to show she had been persecuted.
2)She had not received a “call” from the lawyer. I understood this to be a reference to the lawyer on the panel of the Court’s Legal Advice Scheme.
3)She was not fairly treated at the Tribunal hearing because the Tribunal did not believe her.
4)She needed to obtain a transcript of the Tribunal hearing so that she could understand why the Tribunal did not believe her.
5)She needed more time so that “a student” could read the Tribunal’s decision record to her.

The Applicant’s complaints

To the extent that the applicant’s complaint that she needed more time was a request for an adjournment of the hearing before the Court this must be rejected.
The documents that the applicant wanted to obtain from China were documents which she said would support her claim to have been persecuted in China and therefore to be a refugee. For example, documents relating to her detention.
First, these documents cannot assist the applicant now before this Court. As I attempted to explain to the applicant under the relevant legal system that applies in Australia the question as to whether she was persecuted in China and whether she is a refugee is a question for the Tribunal and not the Court. The question for the Court is whether in making its decision the Tribunal fell into legal error. The documents that the applicant says that she wants to obtain from China would not assist in relation to this issue. This is a complete answer to the applicant’s complaint.
Second, and further, the applicant arrived in Australia in November 2007. She had more than ample time to obtain these documents by the time she made her application for a protection visa in August 2009. Further, she had ample time (three months) before the Tribunal to have made the necessary arrangements.
The applicant said she had difficulties with the authorities. No such claims were made in relation to her mother and father who apparently live in China (CB 5).
Further, the applicant was represented by a registered migration agent. She said nothing as to why in these circumstances she was unable to obtain the necessary documentation, whatever documents these may be.
In any event, there is nothing in the material before the Court to show that she was denied a reasonable opportunity to provide documents. Nor indeed is there anything to show she ever sought any such opportunity.
Before the Court the applicant was at some insistence that she did not understand the reasons for the Tribunal’s decision. I will deal with other aspects below. For the moment, however, to the extent that this may raise some inference that she did not know that she needed to provide documents to the Tribunal then this complaint must be rejected.
First, it is for an applicant to make out her case. Not for the Tribunal to do so.
Second, and in any event, on 21 December 2009 (CB 70) the Tribunal alerted the applicant that: “… If you wish to provide material … for the Tribunal to consider you should do so as soon as possible.”
When the Tribunal invited the applicant to appear before it to: “… give evidence and present arguments …” (CB 72.3) it also said: “… Any documents … sent to the Tribunal …” (CB 72.9).
Despite opportunity, the applicant has not provided any evidence to the Court to challenge the Tribunal’s account of what occurred at the hearing. This account reveals that the applicant had already provided a substantial number of documents to the Minister’s department in relation to her son’s student visa application (see [30] at CB 96) and her student guardian visa ([94] at CB 103).
Relevantly, at the conclusion of the hearing the Tribunal reports that it asked the applicant if there was “anything more” that she wished to say. The applicant said nothing about the need or desire to provide further documents. Nor is there anything before the Court to show that the applicant or her migration agent made any approach to the Tribunal in the following month to even suggest that there were further documents that she wished to put to the Tribunal.
At the First Court Date before the Court the applicant did say she wanted more time to provide further documents. I gave her a further two weeks from the proposed hearing date for this purpose. As it turned out the documents she said she wanted to provide would not have assisted her in relation to the issue before the Court.
Before the Court the applicant also complained that she had not received a “call” from the Legal Advice Scheme panel lawyer. I note that any such failure would not reveal error on the part of the Tribunal, nor be a failure of procedural fairness or breach of any entitlement before the Court.
I refer to the judgment of Driver FM in SZHTI & Anor v Minister for Immigration & Anor [2006] FMCA 41, where his Honour said that procedural fairness does not necessitate access to the Legal Advice Scheme (at [8]), which was upheld on appeal (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [4]).
In any event, I note from the Court file that counsel who was assigned to advise the applicant reported:
“… tried to contact by text, telephone & Letter – nil response.”
The applicant also complains that she needed more time to obtain a transcript of the Tribunal hearing so that she could understand why the Tribunal did not believe her and that she needed more time so that a “student” could read the Tribunal’s decision record to her presumably for the same purpose.
Neither of these requests reveal error on the part of the Tribunal. To the extent that they were put to support an adjournment of the proceedings before the Court they must be rejected.
First, it is clear by what little has been formally pleaded in this case that the applicant understands one thing at least. That the Tribunal did not believe the truth of her entire factual account of claimed events in China. (See in particular ground two.)
Second, the Tribunal’s unchallenged account of what occurred at the hearing reveals that the Tribunal raised all relevant aspects of the applicant’s factual account with her. It is clear that the applicant’s constant explanation for omissions, deficiencies and inconsistencies in her claims was to assert that she was “illiterate” or that she could not remember. (See in particular [31], [32], [35], [37], [46], [48], [52].) There is nothing in this account to suggest that the applicant did not understand why the Tribunal did not believe her account.
The Tribunal tested the applicant’s claimed relevant difficulty at the hearing ([56]), but nonetheless it was reasonably open to the Tribunal to come to the view that this was not the reason for her inability to provide satisfactory answers ([97]).
The applicant was assisted at the hearing by an interpreter in the appropriate language (CB 82). There is nothing in the material before the Court or the Tribunal’s account to suggest that she did not understand what the Tribunal was saying to her. Nor is there any subsequent complaint to the Tribunal by her or her adviser to this effect.
What is left is that the Tribunal, in addition to clearly indicating its concerns with her evidence as it proceeded with the hearing, ultimately, it squarely put to her that it had formed the view that her claims were fabricated to effect a migration outcome ([83] at CB 102).
The applicant does not need a transcript to understand that the Tribunal did not believe her because of the very nature of the way she gave her evidence and the deficiencies in the evidence itself. The Tribunal clearly complied with its procedural fairness requirements pursuant to s.425 in this regard (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”)).
In any event, the applicant had more than ample opportunity to arrange for a transcript in the time since the Tribunal hearing, some six months. The applicant said nothing to the Court about why she had not taken steps to arrange this. Particularly as she is not without person to help her. She had engaged an agent before the Tribunal. Her son is in Australia and is studying. Her claim that he could not assist because he is studying is not a satisfactory explanation particularly for someone who has been in Australia for about two and a half years (see [26] of the Tribunal’s decision record) and must have had some holiday periods in his studies since the Tribunal hearing.
It was again unclear why the applicant needed some other student and not her son to explain the Tribunal’s decision record to her. Again, her agent presumably would have been available for this purpose, as indeed her son. But even if she had wanted someone else to do it the applicant provided no explanation let alone a satisfactory explanation as to why she had not taken steps to do this since March 2010.
I could see no purpose in delaying the hearing of this matter and proceeded to the consideration of the grounds of the application.

Consideration

In ground one the applicant complains that it was not fair of the Tribunal to disbelieve her evidence. She pressed this complaint at the hearing before the Court and said it was unfair of the Tribunal not to have believed her at the hearing.
To the extent that this is also a complaint of unfairness about the outcome then this Court does not have jurisdiction to determine whether the Tribunal’s decision was “fair” or “unfair”. The Tribunal is required to provide fairness in the procedures that it employs and applies (see further below). But as to the outcome, it is as the High Court said in SZBEL at [25] that procedural fairness requires a “fair hearing not a fair outcome” (with reference also to Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6 per Brennan J).
On what is before the Court the Tribunal’s findings were findings of fact within jurisdiction. These were findings of fact “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [67], per McHugh J). The Tribunal gave cogent reasons for its findings which were open to it on what was before it (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ).
This is a case to which s.422B applies making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, absent bias. I cannot see any breach by the Tribunal of those provisions.
The applicant was invited to attend and did attend a hearing before the Tribunal. The invitation complied with all the relevant statutory and regulatory requirements. The letter was sent pursuant to s.425, and complied with s.425A, the notice was sent by one of the methods set out in s.441A, namely, s.441A(4) by registered post to the authorised recipient in compliance with s.441G. The relevant notice period was met (with reference to s.441C(4) and reg.4.35D(b)).
The applicant has not put any evidence before the Court to challenge the Tribunal’s account of the hearing. On this account the determinative issue in the review was raised at the hearing. As set out above, there were clear indications during the course of the hearing that the Tribunal had difficulties with the applicant’s evidence such that it did more than “sufficiently indicate” that it had concerns with her entire factual account ([33], [64], [65], [69], [72], [78] culminating at [83]). This is with SZBEL in mind.
I did consider whether any breach of s.424A(1) occurred. This obligation of course is that the Tribunal must given to the applicant “information” that it considers would be the reason or a part of the reason for affirming the decision under review.
The applicant has not put any evidence before the Court, other than the Tribunal’s decision record itself. (See the applicant’s affidavit of 20 April 2010 to which the record is annexed to show what information within the meaning of s.424A(1) the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision.)
With reference to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] this needs to be determined at some point prior to the Tribunal’s published reasons (“… is to be determined in advance …”). In that case reference was also made that such determination was to be considered “independently” of the Tribunal’s “particular reasoning on the facts of the case.”
In the current case the applicant has put nothing but the Tribunal’s decision record before the Court. However, I agree with Mr May that the Court is able to have regard to the Tribunal’s decision record in this regard. (See the subsequent High Court judgment in Minister for Immigration & Citizenship v SZLFX & Anor [2009] HCA 31; (2009) 238 CLR 507 (“SZLFX”) at [26].) At least for the purpose of making a determination as to whether there was such “information” that the Tribunal considered would be the reason at some point anterior to the making of its decision. (See in this regard SZMFZ v Minister for Immigration & Citizenship [2008] FCA 1890 at [36] (“… that may be a relevant consideration in drawing inferences as to the proper characterisation of that information” per Siopis J), SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [15] per Jacobson J (“…But I do not think it follows from what the High Court said in SZBYR that in making an assessment of whether section 424A(1) was engaged, a court can never have regard to the reasons of the Tribunal.”), see also at [16], SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721 per Perram J at [15]-[16].)

In this regard information provided by the applicant in her protection visa application and what she told the Tribunal at the hearing in any event falls within the exemptions in s.424A(3)(ba) and (b) respectively from the obligation in s.424A(1).
To the extent that the Tribunal made reference in its account of the hearing to what the applicant (and her husband) had provided in connection with her and her son’s student and student guardian visas ([30] at CB 96) it is clear that such information was not considered by the Tribunal to be the reason or a part of the reason for affirming the delegate’s decision. (See [94] at CB 103.)
As was said in MZXBQ v Minister for Immigration & Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [29], s.424A “speaks of information which ‘would’, not which ‘could’ or ‘might’, be the reason or part of the reason for affirming the decision under review”. (See SZLFX at [25].)
In any event, I also agree with Mr May that the documents provided in support of the student and student guardian visas: “… did not contain in their terms a rejection, denial or undermining of the [applicant’s] claims to be [a] person to whom Australia owed protection obligations.” As such this is not “information” for the purposes of s.424A(1).
In all, therefore, ground one as pleaded is not made out nor otherwise does it assist the applicant.

Ground Two

The first sentence in ground two is difficult to discern. The applicant was unable to assist. If the applicant means to assert that the Tribunal relied on authorities subsequently overturned on appeal then there is no evidence before the Court that this is the case.
The applicant’s complaint that the Tribunal did not believe her does not rise above a request for the Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). Findings of fact, including findings as to credibility, are for the Tribunal to make, and in circumstances where it was reasonably open to the Tribunal to make findings to support this, the Tribunal’s finding as to credibility was within the proper exercise of its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). No error is revealed.

Ground Three

The applicant’s complaint in ground three does not succeed at the factual level. The Tribunal plainly noted the applicant’s claim that she would be put in gaol if she returned to China. (See [87].) However, the Tribunal found that the applicant had fabricated her claims ([98]). On this basis the Tribunal found that there was no real chance that the applicant would be persecuted on return ([104]). The applicant’s complaint again is an attempt to challenge the Tribunal’s factual findings. It does no more than seek impermissible merits review (Wu Shan Liang).

Conclusion

For the applicant to succeed the Court would at least need to discern jurisdictional error in the Tribunal’s decision. No such error is revealed. This is a privative clause decision for the purposes of the Act. Therefore the application is dismissed.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: 20 July 2010