SZORU v Minister for Immigration
[2011] FMCA 182
•28 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZORU v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 182 |
| MIGRATION – VISA – Protection (Class XA) visa – Refugee Review Tribunal – application for review of Refugee Review Tribunal decision – citizen of China – Falun Gong – claim of fear of persecution as a Falun Gong practitioner – credibility – where Tribunal was not satisfied that the applicant was a credible witness – application to review delegate’s decision – Federal Magistrates Court has no jurisdiction to review delegate’s decision – allegation of bias – Tribunal not obliged to give reasons for procedural determination – where Tribunal stated it was unable to grant an extension of time to respond to an invitation to comment – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36, 91X, 420, 424, 424A, 424B, 424C, 425, 476 |
| SZMVJ v Minister for Immigration & Anor [2009] FMCA 715 Nisha v Minister for Immigration [2005] FMCA 441 Diallo v Minister for Immigration [2009] FMCA 642 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 CLR 592 |
| Applicant: | SZORU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2275 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 February 2011 |
| Date of Last Submission: | 28 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No Solicitor on the record |
| Solicitor for the Respondents: | Ms Stone |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2275 of 2010
| SZORU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made on 17th September 2010. The Tribunal affirmed the decision by a delegate of the Minister for Immigration and Citizenship, the first respondent, not to grant the Applicant a Protection (Class XA) visa.
The Applicant, who is currently in Immigration Detention, seeks orders that:
i)The case be re-examined.
ii)Remit the case to the Tribunal
The Applicant seeks a review of the delegate’s decision made on
4th August 2010, but that is not the subject of this review. The Court does not have jurisdiction to review the delegate’s decision, which is a primary decision (see Migration Act 1958, s.476(2)(a)). The matter for determination is the judicial review of the decision of the Refugee Review Tribunal.
Background
The Applicant is a citizen of China. He most recently arrived in Australia on 3rd August 2007. He did not apply for a Protection visa until 15th June 2010, when he was already in immigration Detention at Villawood.
In a statutory declaration, which was prepared with the assistance of a migration agent, the Applicant claimed a fear of persecution if he were to return to China because he is a Falun Gong practitioner and had renounced the Chinese Communist Party.[1]
[1] See Court Book at page 35
The Applicant stated that he left China in 2005 to study in Australia. He disclosed that he had stayed at a variety of addresses in South Australia from July 2005 to May 2007.[2] His student visa expired in 2006 but he remained in Australia and endeavoured to obtain another visa. He declared that:
In May 2007 (I) was given a Bridging Visa B to return to China and visit my mother who was very ill. I returned to Australia in August 2007. I re-entered on my Bridging Visa and continued to pursue the possibility of getting another student visa. In about April 2008 I attended a hearing at the MRT about my student visa.[3]
[2] Court Book at 34
[3] Ibid at 35 paragraph [7]
The Applicant did not obtain another student visa. He claimed that he became involved with Falun Gong in Adelaide after attending a meeting on 4th June 2009. He started studying the philosophy of Falun Gong but he never practised in public.
In December 2009 the Applicant became involved in an altercation with a man over money. The Applicant was arrested and charged with assault. He was apparently refused bail and was held in custody until March 2010. He stated that “On 18 March 2010, before the case went to Court, the charges were dropped”.[4]
[4] Ibid at 36 [10]
The Applicant was taken into immigration detention and informed that he had to leave Australia by 10th June 2010. However, the Applicant stated that:
On Saturday 12 June I received an email from my elder brother. He said that the Chinese authorities had found out that I had joined the Falun Gong and that I had quit the party and spoke against the Communist party. He said that my father was told that as a member of the Communist Party it was their responsibility to follow up the matter and said that I should confess everything and that when I returned I would have to undergo some form of re-education and that depending on what happened during this, I could face other punishment. The Communist party official who spoke to my father did not tell him how they found out about my activities in Australia.[5]
[5] Court Book 36 at [12]
The Applicant was invited to attend an interview with an officer of the Department on 27th July 2010. He attended that interview.
On 4th August 2010 the Minister’s delegate refused the application for a protection visa. In the Protection Visa Decision Record, the delegate stated that she was satisfied that the Applicant was a national of the People’s Republic of China. However, the delegate was not satisfied that:
a)The activities in which the Applicant had engaged would indicate that he was a Falun Gong practitioner, that he had joined Falun Gong or that he would be perceived as a Falun Gong practitioner;
b)That he would be of interest to the authorities in China due to his activities in relation to Falun Gong; or
c)That he had been able to substantiate his claim that he signed a document that he had renounced the Chinese Communist Party and had spoke against them.[6]
[6] Ibid at 76-77
The delegate was not satisfied that the Applicant was a person to whom Australia has protection obligations and refused the application.
On 12th August 2010 the Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.
Application to the Refugee Review Tribunal
The Tribunal wrote to the Applicant on 19th August 2010, inviting him to attend a hearing on 16th September 2010.
On 23rd August 2010, the Tribunal wrote again to the Applicant, inviting him to comment on or respond to certain information by
30th August 2010. The letter was intended to comply with the requirements of s.424A of the Migration Act 1958.
On 27th August, the Applicant’s new migration agent telephoned the Tribunal, advising that he had just taken over the Applicant’s case as his previous migration agent had gone to Christmas Island. The agent, Mr Paul Fergus, asked for “an extension of a few days”[7] in order to provide that information. He made a written request to that effect that same day, advising that the Applicant was preparing comments for him to draft a formal response and he sought an extension of the deadline to Friday 3rd September.[8]
[7] Court Book 120
[8] Ibid 121
The Tribunal replied that same day, refusing the request for an extension of time. The Tribunal’s letter, dated 30th August 2010, stated:
The Tribunal has considered the request carefully but as the tribunal is unable to grant an extension of time of three days duration it has decided not to grant an extension of time. The comments or response and the information must therefore be received by the Tribunal by 30 August 2010, as previously advised.
However, please note that the Tribunal will consider any submissions received prior to a decision being made.
If the Tribunal does not receive your comments or response or the information within the period allowed, the Tribunal may make a decision on the review without taking any further action to obtain your views on the information or to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.[9]
[9] Ibid at 129
The migration agent then forwarded a letter to the Tribunal later that same day, saying (inter alia):
Given the extremely short time within which you expect (the applicant)[10] to reply, it has not been possible to prepare a full response to all the matters you raise. Therefore, we are making this response in order to protect (the applicant’s) right to a hearing before the Tribunal.[11]
[10] The applicant’s name has not been published in order to comply with Migration Act 1958 s 91X
[11] Court Book 134
The agent then went on to make some comments about some of the factual matters raised in the Tribunal’s request for information.
Late that afternoon the applicant’s migration agent faxed a three page response to the Tribunal.[12]
[12] Ibid 135-138
The following day, the Applicant’s migration agent forwarded a further two page submission to the Tribunal.[13]
[13] Ibid 141-143
The Applicant attended the Tribunal hearing on 16th September 2010 and gave evidence.
On 20th September 2010 the Tribunal notified the Applicant’s migration agent that the Tribunal had decided to affirm the decision under review.
The Refugee Review Tribunal Decision
The Tribunal’s Decision Record is dated 17th September 2010.
In its decision, the Tribunal sets out the Applicant’s claims under the heading Claims and Evidence. The Tribunal summarised the Applicant’s statements to the Minister’s delegate at the interview on 27th July[14].
[14] Ibid 156 – 158, paragraphs [22]-[23]
As to the hearing itself, the Tribunal noted that the Applicant appeared before the Tribunal at the hearing, which was conducted with the aid of an interpreter in the Mandarin and English languages. The Tribunal made this curious statement:
The applicant was represented in relation to the review by his registered migration agent.[15]
[15] Court Book 159 at [28]
It is not clear what this statement means. The RRT Hearing Record in the Court Book shows that the agent was marked “Not present”[16], so it cannot be the case that the applicant was represented by a migration agent at the hearing.
[16] Ibid at 144
The summary of the Applicant’s evidence to the Tribunal can be found at paragraphs [28] to [52] of the Court Book.[17] The Tribunal asked the Applicant to perform a Falun Gong exercise and noted that he performed some of the movements of the exercise “Buddha Showing a Thousand Hands” but did not complete the exercise.
[17] Ibid at 159-167
The Tribunal accepted that the Applicant is a national of China and assessed his claims against that country.
However, the Tribunal was not satisfied about the credibility of the Applicant, saying:
The Tribunal found the applicant not to be a witness of credibility. The Tribunal found him to be evasive and at times non-responsive to the questions posed to him. The Tribunal has formed the view that he was untruthful in his evidence.[18]
[18] Ibid at 167 [54]
The Tribunal set out a number of significant concerns about the Applicant’s evidence, including:
a)Why the Applicant decided to “join” Falun Gong after he had been in Australia some four years;
b)The Applicant’s delay in applying for a protection visa, some twelve months after he had taken up the practice of Falun Gong;
c)The Applicant’s inability to produce a copy of the email he claimed to have received from his brother on 12th June 2010, informing him that the Chinese authorities had found out that he had joined Falun Gong and had spoken out against the Communist Party;
d)The Applicant’s inability to perform the Falun Gong exercises; and
e)The Applicant’s contradictory explanations about how his family back in China had become implicated.
The Tribunal found that the Applicant had not been truthful in his claims and found that they had been fabricated. Accordingly, the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and, therefore, he did not satisfy the criterion set out in s.36(2)(a) for a protection visa.
Application for Judicial Review
The Applicant filed an application for review on 20th October 2010, seeking orders that his case be re-examined and remitted to the Tribunal. It was explained to him at the hearing that the Court only has the power to remit a matter to the Refugee Review Tribunal if it is satisfied that the Tribunal has fallen into jurisdictional error.
The grounds of review in the application are:
1. Procedural unfairness in the review conducted by the Immigration Department.
2. Prejudicially treated by the Refugee Review Tribunal.
The Applicant reiterated those claims in his supporting affidavit.
The Minister filed a Response opposing the orders sought, on the bases that:
a)the Court has no jurisdiction to review the decision of a delegate;
b)the Applicant’s claim to have been prejudicially treated amounts to an allegation of bias, which has not been particularised or proved; and
c)no arguable case for relief is disclosed as no jurisdictional error is made out.
Submissions
The Applicant did not file any written outline of submissions, although he did receive legal advice from a solicitor on the RRT Panel.
The Applicant attended Court and made an oral submission that he had been prejudiced against because he had not been given enough time to provide the information required by the Tribunal before the hearing. He said that the Tribunal tried to deal with his case as soon as possible and the hearing was “just a formality”. The Tribunal did not deal with his case thoroughly and properly.
Ms Stone, who appeared for the Minister, submitted that the Tribunal complied with its obligation to provide procedural fairness as codified by Division 4 of Part 7 of the Act. The Tribunal wrote to the Applicant on 23rd August 2010 seeking information under the provisions of ss.424 and 424A of the Act.
The Applicant sought an extension of time to respond to the letter. The application was received within the prescribed time for reply. Under the provisions of s.424B(4) of the Act the Tribunal has the power to extend the time for a response but is under no obligation to grant a request for extension of time (see SZMVJ v Minister for Immigration & Anor[19] at [29]).
[19] [2009] FMCA 715
The Minister conceded that it is unclear why the Tribunal refused to grant the extension on the basis that it was “unable to grant an extension of time of three days duration”.[20] Although the Tribunal’s statement of reasons provides no explanation the Tribunal is not obliged to give reasons for a procedural determination such as this (see Nisha v Minister for Immigration[21] at [33]; Diallo v Minister for Immigration[22], and Minister for Immigration and Citizenship v SZGUR[23] at [32] and [69]).
[20] Court Book 129
[21] [2005] FMCA 441
[22] [2009] FMCA 642
[23] [2011] HCA 1
It was further submitted that the Applicant sent through a response to preserve his right to a hearing within the prescribed time and then two further submissions, which were taken into account by the Tribunal. If there had been any error by the Tribunal in the exercise of its discretion not to allow the Applicant additional time, it was not material. The Applicant did not present any evidence to show that he was in any way disadvantaged or did not provide all that he wished to provide.
As to the allegation of prejudicial treatment, which can be taken as an allegation of either actual or apprehended bias, there is nothing to suggest that either:
a)the Tribunal Member had a pre-existing state of mind that disabled her from undertaking or rendered her unwilling to undertake any proper evaluation of the relevant materials before her (see Minister for Immigration and Multicultural Affairs v Jia Legeng[24] at [35] and [72]); or
b)a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal Member may not have brought an impartial mind to the resolution of the question to be decided (see Re Refugee Review Tribunal; Ex parte H[25] at [27]).
[24] (2001) 205 CLR 507; [2001] HCA 17
[25] (20010 75 ALJR 982
Conclusions
It is not clear why the Tribunal stated that it was “unable” to grant an extension of time to the Applicant to provide a response to the section 424/424A letter. It was well within the Tribunal’s power to do so. Subsection 424B(4) clearly states:
If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
If the Tribunal was of the belief that it did not have the power to grant an extension for three days, that is clearly an error. True it is that the Tribunal is not obliged to give reasons for a procedural determination of this nature (see Nisha v Minister for Immigration[26] at [33]; Diallo v Minister for Immigration[27] at [10]; and Minister for Immigration and Citizenship v SZGUR[28] at [32] and [69]), but in this case the Tribunal did give a reason, that of inability. The only logical meaning for the Tribunal’s expression of inability is a belief that the Tribunal lacked the power, which is clearly not the case.
[26] Supra
[27] Supra
[28] Supra
Of course, the Tribunal was not under any obligation to grant the request for an extension (see SZMVJ v Minister for Immigration[29] at [29]) but the request on its face seemed reasonable enough in the circumstances. As it was, the refusal to grant the extension was communicated to the Applicant’s migration agent on the morning of 30th August, the day of the deadline, which prompted him to forward a quick letter in order to preserve the Applicant’s right to a hearing before the Tribunal.
[29] Supra
The incident is unfortunate, to say the least, and does not show the Tribunal in a good light. The Refugee Review Tribunal is an agency of the Australian Government and has an obligation to conduct its business in a fair and reasonable way. Section 420 of the Migration Act requires the Tribunal “to pursue the objective of providing a mechanism of review that is fair, just, economical and quick”.
If the Applicant had not forwarded a response to the Tribunal within time, the Tribunal could have made a decision on the review without taking any further action to obtain the Applicant’s views or the information sought, under s.424C. The Tribunal would also not have been required to hold a hearing at all (s.425(2)(c)).
As it was, that situation did not occur. The hearing did take place. The Applicant attended the hearing and gave evidence. The Tribunal’s refusal to grant the short extension of time on the apparently erroneous ground of inability to do so did not lead to any practical injustice or unfairness (see Minister for Immigration and Citizenship v SZIZO[30]). There is nothing to show that the Applicant did not have the opportunity at the hearing to put whatever he considered necessary.
[30] [2009] HCA 37; (2009) 238 CLR 627
It is the case that the Applicant’s migration agent forwarded a document containing the applicant’s comments and response to the Tribunal’s s.424/424A letter to the Tribunal late on the afternoon of
30th August 2010. The Court Book shows that the comments were faxed at 17:43 in the afternoon, which would appear to be after business hours. However, it is clear from the Tribunal Decision Record at paragraphs [25] to [27] that the Tribunal considered that material:
The applicant replied on 30 August 2010…[31]
[31] Court Book 158-159 [25]-[27]
The Applicant’s migration agent forwarded a submission containing additional material to the Tribunal by facsimile on 31st August 2010.[32] The Tribunal does not specifically refer to this second submission having been received. However, the Tribunal refers to the information in that second document in its summary of the Applicant’s claims at paragraphs [26] and [27] of the Decision Record.[33]
[32] Ibid 141-143
[33] Ibid
In the circumstances, despite the Tribunal’s omission to make clear that it received this second document, it does not appear that the Tribunal did not consider the information contained in it.
The Applicant has not made out a claim of either actual or apprehended bias on the part of the Tribunal. Bias is a serious allegation and should be strictly alleged and proved. This has not been done.
It is clear from the Tribunal decision that the Applicant was unsuccessful because the Tribunal was not satisfied as to his credibility. That is a matter for the Tribunal. The Applicant attended at the hearing and gave evidence. It was for the Tribunal to form a view as to his credibility, based on his oral evidence at the hearing. It must have been clear to the Applicant that the credibility of his account was in issue, as the delegate had also rejected his application for a visa on credibility grounds. Thus, the Tribunal complied with its obligation under section 425 of the Act to afford the Applicant an opportunity of ascertaining the relevant dispositive issues arising in relation to the decision under review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[34] at [32]-[35]).
[34] (2006) 231 ALR 592
In my view, the Applicant has not demonstrated any jurisdictional error on the part of the Tribunal. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision (see s.474(1)). It is final therefore final and conclusive and not subject to any orders in the nature of prohibition, mandamus, injunction, declaration or certiorari.
The application must therefore be dismissed.
The Minister seeks an order for costs which must now be considered.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 24 March 2011
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