SZOVY v Minister for Immigration - [2011] FMCA 163

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOVY v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 163

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal gave information to the applicant in accordance with s.424AA of the Migration Act 1958 (Cth).

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

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZOVY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2696 of 2010

Judgment of:

Emmett FM

Hearing date:

3 March 2011

Date of Last Submission:

3 March 2011

Delivered at:

Sydney

Delivered on:

16 March 2011

REPRESENTATION

Counsel for the Applicant:

Ms K. Balendra

Counsel for the Respondent:

Mr Cleary

Solicitors for the Respondent:

Ms. A Totoeva (Clayton Utz)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2696 of 2010

SZOVY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

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 November 2010 and handed down on the same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and a Falun Gong Practitioner (“the Applicant”).
The issue in this case is whether the Refugee Review Tribunal gave information to the Applicant in accordance with s.424AA of the Act. This issue is considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

The Applicant arrived in Australia on 8 September 2009 having departed legally from China on a valid Chinese passport issued in his own name and a subclass 676 Tourist (Short Stay) visa valid until 8 December 2009.
On 24 November 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 22 February 2010, the Delegate refused the Applicant’s application for a protection visa.
On 8 March 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 26 November 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 14 December 2010, 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 s.65(1)(b) mandates that 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”).
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 of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

The Applicant provided a statement in support of his protection visa application in which he stated:
a)The Applicant is a 38 year old male from Hebei province in China. The Applicant fears he will be persecuted if he returns to China due to his practice of Falun Gong. The Applicant claims that he was a dairy farmer in China and he used to suffer with stomach problems. In 2006 his employee witnessed the Applicant’s stomach trouble and told him about the benefits of Falun Gong. At 6 o’clock each day he would practise Falun Gong with his employee and her husband, in the storeroom of the Applicant’s home. The Applicant claims that by the end of that year his stomach problems had gone.
b)The Applicant claims that on 15 July 2009, his employee and her husband advised him that another Falun Gong practitioner had been detained for one month due to his promotion of Falun Gong. The employee asked the Applicant to print leaflets on his copying machine at home to “…expose the violence committed by the authority”. The Applicant made 200 copies of the leaflet the following day and the employee’s husband delivered the leaflets.
c)The Applicant claims that on 20 July 2009 the employee’s husband was caught delivering the leaflets. The employee warned the Applicant to leave China in case her husband was forced to make a confession to the authorities that the Applicant was involved in the printing of the documents.
d)The Applicant claims he and his wife were worried so they approached an agent to apply for a visa for Australia. He arrived in Australia on 8 September 2009 and begun practising Falun Gong in Campsie, NSW. On 20 September 2009, the Applicant claims that he got a call from his wife in China where she advised that two police officers had come to their home on 18 September 2009 looking for the Applicant. The Applicant claims that the police told his wife that when he returns to China, he needs to report to the police station as he is needed for certain information.
e)The Applicant fears that if he returns to China he will be arrested and sentenced due to his Falun Gong activities.

The Delegate’s decision

In a letter dated 11 January 2010, the Applicant was invited to attend an interview with the Delegate on 15 February 2010. The interview invitation letter was sent by registered post to the Applicant’s postal address. The Applicant did not attend the interview, and did not contact the department to provide a reason for his non attendance.
On 22 February 2010 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 Tribunal’s review and decision

On 8 March 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided no further documents in support of his review application.
On 24 March 2010, the Tribunal wrote to the Applicant informing him 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 23 April 2010 to give oral evidence and present arguments.
On 23 April 2010, 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 Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the first respondent in his written submissions as follows:
“ Tribunal’s Decision dated 26 November 2010
9. In its decision the Tribunal affirmed the delegate’s decision not to grant a protection visa to the applicant.
10. The Tribunal rejected the applicant’s claims on the basis that he was not telling the truth about his involvement in Falun Gong in China. The Tribunal did not accept that:
(a) the applicant had a diary (sic) farm in the Hebei province;
(b) that the applicant took up practicing Falun Gong in 2006 at the suggestion of his employee, Ms Li Juan;
(c) that the applicant, Ms Juan and her husband were involved in copying and distributing pamphlets drawing attention to the treatment of Falun Gong practitioners by the authorities in China;
(d) that Ms Juan’s husband was arrested on 20 July 2009 whilst distributing the pamphlets; or
(e) that the PSB came to the applicant’s home looking for him on 18 September 2009
11. The Tribunal did not accept that the applicant’s family in China has been discriminated against because he had been exposed as a Falun Gong practitioner.
12. The Tribunal accepted that the applicant had taken steps to learn Falun Gong exercises since his arrival in Australia, and that he had been attending a study group at Campsie. However, the Tribunal was not satisfied that he had engaged in this conduct in Australian otherwise than for the purpose of strengthening his refugee claims and accordingly the Tribunal disregarded that conduct pursuant to s91R(3) of the Act.
13. The Tribunal found the applicant was not a person to whom Australia owed protection under the Act.”

The proceeding before this Court

The Applicant was represented at the hearing by Ms Balendra, of counsel.
On 2 February 2011, the Applicant attended a directions hearing before me. The Applicant confirmed that he wished to continue with the application. The Applicant 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, including any transcript of the Tribunal hearing.
At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
Counsel for the Applicant, Ms Balendra, confirmed that the Applicant relied on the grounds contained in an amended application filed on 21 February 2011 as follows:
“1. The Second Respondent failed to provide procedural fairness or comply with its obligations pursuant to s.424AA or 424A of the Act and thereby fell into jurisdictional error.
Particulars
As part of the reason for its decision the Second Respondent relied upon information purportedly contained in the joint Application for a visitors’ visa made by the applicant and his spouse on 31 August 2009, without providing clear particulars of this information to the Applicant either orally or in writing.
2. The Second Respondent’s conclusions drawn from the information particularised in paragraph 1 above were illogical, irrational and unreasonable. ”
During submissions, Ms Balendra effectively withdrew ground 2 of the amended application on the basis that if the Applicant succeeded in ground 1, then it was not necessary to contend that the Tribunal’s findings and conclusions were “illogical irrational and unreasonable.” Ms Balendra conceded that if the Tribunal had in fact complied with s.424AA of the Act in giving the information to the Applicant then there was no other error upon which the Applicant relied to demonstrate jurisdictional error on behalf of the Tribunal.
The first respondent’s counsel, Mr Cleary, conceded that information provided by the Applicant in a tourist visa application he made on 31 August 2009 was information that enlivened obligations under s.424A, where it was information that may be part of the reasons for the Tribunal affirming the decision under review. . Mr Cleary also agreed than such information was not given to the Applicant in accordance with s.424A of the Act. However, the first respondent contended that the information was given to the Applicant in accordance with s.424AA of the Act and there is no other error discernable in the Tribunal’s decision.
Section 424AA of the Act is as follows:
Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
It is common ground that the information in the Applicant’s visitor visa dated 21 August 2009 is clearly inconsistent with claims made by the Applicant in his protection visa application. Accordingly, the Tribunal was entitled to have regard to that inconsistency in making its adverse findings as long as that information was given to the Applicant in accordance with s.424AA of the Act.
In support of the Applicant’s contention that the Tribunal had failed to comply with s.424AA of the Act, the Applicant read the affidavit of Catherine Neville, affirmed on 21 February 2011, annexing a transcript of the Tribunal hearing. The affidavit was admitted without objection.
Below is a summary of the various exchanges that the Tribunal member had with the Applicant about his claims.
The transcript makes clear that the Tribunal member referred first to the Applicant’s claims of having a dairy farm in China. The Tribunal member explored those claims with the Applicant.
The Tribunal member then asked the Applicant if he had ever lived in Shenzhan, to which the Applicant responded “about this I have to apologise because I used some false materials in order to come to Australia.”
In response, the Tribunal member asked the Applicant if he was referring to the visitor visa application in which he had said he lived in Shenzhan for six or seven years. The Applicant responded that he had no idea how the agent had organised his documents. His answer made clear that he was aware of that information on his visitor visa application. Shortly after, he said that he did not know anything about his original visa application because he gave his passport to his migration agent and he did not know how the agent organised his application.
The Tribunal member then put to the Applicant that he clearly knew about his visitor visa application and that in it he claimed that he was living in Shenzhan. The Applicant responded that his migration agent had told him about that. The Tribunal then put to the Applicant that in his visitor visa application he had said he was a deputy general manager of a company in Shenzhan. The Applicant agreed that his application did contain that information. The Applicant then agreed that he clearly knew about the false information that was provided in his visitor visa application that stated that he had been living in Shenzhan.
The Tribunal then explored with the Applicant his claims to be a Falun Gong practitioner and his claims of practice in China and of distributing pamphlets in support of Falun Gong.
The Tribunal member then returned to the Applicant’s claim of having a dairy farm in China and put to him that the Tribunal member was forming the impression that he had never run a dairy farm at all and that he had worked in an office. The Tribunal member put to the Applicant that he did not believe that he knew anything about running a dairy farm. The Applicant responded that his impression was incorrect. The Tribunal member continued to explore with the Applicant his claims of having run a dairy farm in China and the work involved in doing so.
The Tribunal member then moved on to the Applicant’s alleged arrest of his co-practitioners in Falun Gong and his alleged distribution of pamphlets.
The Tribunal member then explored with the Applicant why he waited until August to apply for his visitor visa after his friend’s arrest in July 2009. The Tribunal member explored with the Applicant why it took him so long to apply for protection after he arrived in Australia.
The transcript makes clear that the Tribunal member then adjourned for a short break before resuming. After resuming the hearing, the Tribunal member explored with the Applicant his allegations of practice of Falun Gong in Australia, including demonstrating some of the exercises.
Thereafter, the Tribunal member gave the Applicant information in purported compliance with s.424AA of the Act in the following terms:
THE MEMBER: Mr [Applicant], please take a seat. What I’m going to do now is I’m going to give you some information which I consider to be the reason or part of the reason for affirming the decision under review. I’ll explain the information to you so that you understand why it is relevant to the review and also explain the consequences of the information being relied upon and affirming the decision under review. I’ll ask you to comment on it and respond to the information. If you want additional time to comment or respond to the information you can tell me. I’ll then consider whether to adjourn the review to give you additional time.
Now, as we discussed in your application for the visitor visa which you used to travel to Australia you said that you’d been living in Shenzhan for six or seven years. You said that you were the deputy general manager of a company in Shenzhan?
MR [APPLICANT]: (Through interpreter) That information I was only informed by my agent after I got my visa and passport. I thought he would apply with my real ID.
THE MEMBER: As we discussed Mr [Applicant], I find it very difficult to believe that you were running a dairy farm in He Bai province. You don’t seem to know the sorts of things that I would expect someone who was running a dairy farm to know.
Thereafter, the Applicant talked again about his farm briefly. Six questions later the Tribunal member again had the following exchange with the Applicant:
THE MEMBER: Now, the information in you visitor visa application is relevant to the review because if I find that information is true then obviously the story you’ve tod in support of your application for a Protection visa is false. You couldn’t have been taking up Falun Gong and distributing pamphlets in Ha Bai if you were living and working in Shenzhan. Did you understand?
Mr [APPLICANT]: (Through interpreter) Your speaking I understood. However, I raised the cows in ha Bai province, that’s true. About working experience in Shenzhan I got to know this after I was granted with the visa and it had my passport returned from the agent. The agent told me after that. Things got to that step so I can only come to Australia with this passport and the visa. If I ever stayed in China I would be persecuted and I couldn’t stay there.

Following that exchange, the Tribunal member and the Applicant had further exchanges about the alleged arrest of the Applicant’s co-practitioners in China and his allegation that the police were looking for him at his home in China prior to his departure from China. The Tribunal member put to the Applicant concerns it had about those claims.
The Tribunal member then again re-visited the Applicant’s claims of practising Falun Gong in Australia. The Tribunal member put to the Applicant that the Tribunal member may take the view that he had taken up practice of Falun Gong in Australia for the purpose of strengthening his application for refugee status. The Tribunal member told the Applicant that if it took that view then the Tribunal was required to disregard his conduct in Australia in considering his claims to have a well founded fear of persecution in China for a Convention related reason.
The Tribunal member also clearly put to the Applicant that if it did not accept his claims regarding his involvement in copying leaflets to expose the treatment of Falun Gong practitioners in China, the Tribunal may not accept that there is a real chance that he will be persecuted for reasons of his political opinion if he were to return to China.
The Tribunal member then had the following exchange with the Applicant:
THE MEMBER: As I mentioned earlier you are entitled to seek additional time to comment on or to respond to the information I’ve given you in the course of the hearing.
MR [APPLICANT]: (Through interpreter) I want additional time.
THE MEMBER: Right. What do you need additional time for; what for you want to do?
MR [APPLICANT]: (Through interpreter) I want to tell you about the influence my family received in China.
THE MEMBER: You can tell me now, can’t you?
MR [APPLICANT]: (Through interpreter) Yes, I want to tell you now.
THE MEMBER: what do you want to tell me?
MR [APPLICANT]: (Through interpreter) Since the PSB visited me at the dairy farm the boss gave us different treatment.
The Tribunal member then explored with the Applicant his allegations of visits to the farm by the Public Security Bureau (“PSB”) and shortly thereafter, had the following exchange with the Applicant:
THE MEMBER: Right, well, you said you wanted more time, additional time to comment or to respond to information I’ve given you in the course of the hearing. So what do you want to do?
MR [APPLICANT]: (Through interpreter) I just want to make a statement of the unfair treatment my wife had received in China.
THE MEMBER: Well, if you want to make that statement in writing.
MR [APPLICANT]: (Through interpreter) Through oral.
THE MEMBER: You want to come back on another day?
MR [APPLICANT]: (Through interpreter) If possible to finish my statement today.
THE MEMBER: But you were saying you wanted more time, Mr [Applicant].
MR [APPLICANT]: (Through interpreter) Doesn’t to be very long, to be more time, another 10 or 15 minutes will be enough.
Thereafter, the Tribunal member had a short exchange with the Applicant about the alleged treatment of his wife at the farm in China and invited the Applicant to tell him whatever he wished by way of explanation.
Following the Applicant’s answer, the Tribunal member again had the following exchange with the Applicant:
THE MEMBER: Do you still need additional time then, or are you saying you don’t need additional time?
MR [APPLICANT]: (Through interpreter) No need, I think I made my point.
The hearing was then closed.
Counsel for the Applicant contended that after first giving the Applicant the information that it considered the reason or part of the reason for affirming the decision under review and giving its explanation (as quoted in paragraph 44 and 45 above) following the Applicant’s answer given in that exchange, it is apparent from the transcript that the Applicant did not understand the Tribunal member’s explanation of the relevance of the information in the visitor visa; and whether or not the Applicant wished to have additional time to respond. Counsel for the Applicant submitted that in those circumstances, the Tribunal had failed to comply with s.424AA of the Act.
Counsel for the Applicant submitted that the Applicant’s answer to the Tribunal member’s explanation of the relevance of that suggested that the Applicant did not understand what was being put to him by the Tribunal member. Counsel for the Applicant made a similar complaint in respect of the conversations, quoted at paragraphs 49 and 50 above.
It is clear from the summary in these reasons above, that the Applicant was well aware that there was inconsistent information in his visitor visa. His explanation was that it was put there by his migration agent without his consent.
In the circumstances, I do not accept the submission by counsel for the Applicant that the Applicant was under any misapprehension as to the concerns the Tribunal had about the information given by the Applicant in his visitor visa in the light of the general concerns expressed by the Tribunal member to the Applicant about his claims of ever having run a dairy farm in China.
I do not accept that in the context of the totality of the exchanges the Tribunal had with the Applicant about his claims and the various concerns it expressed to the Applicant that the Applicant did not understand those concerns.
I am satisfied that the Tribunal ensured as far as was reasonably practicable that the Applicant understood why the information was relevant to review and the consequences of the information being relied upon in affirming the decision under review. I am satisfied that the Tribunal orally invited the Applicant to comment on or respond to the information and advised the Applicant that he could seek additional time to comment on or respond to the information. The transcript makes clear that the Applicant did not wish for additional time in respect of any aspect of his hearing.
In the circumstances, I am satisfied that the Tribunal complied with its obligations under s.424AA of the Act in giving the Applicant information that may be the reason or part of the reason for affirming the decision under review. That information was the inconsistent information given by the Applicant in his visitor visa application that he lived in Shenzhan for six or seven years and was deputy general manager of a company there. This information was plainly inconsistent with information provided by the Applicant in his protection visa application that he was a dairy farmer essentially from 1992 to 2009 in Xiwa Village, Nandong Town, Gaocheng City, Shijiazhuang, Hebei Province, China.
Accordingly, ground 1 of the amended application is not made out.
The Applicant’s counsel did not make any submissions in support of ground 2. However, even if ground 2 were not withdrawn, it was not made out on the face of the Tribunal’s decision record for the reasons below.
A fair reading of the Tribunal’s decision record makes clear that it accurately summarised the exchanges it had with the Applicant at the hearing. Ultimately, the concerns expressed by the Tribunal were not satisfied by the explanations offered by the Applicant. The Tribunal rejected the Applicant’s claims of ever having had a dairy farm in China or having taken up practice of Falun Gong in 2006 as claimed. The Tribunal also rejected the Applicant’s claims of having copied and distributed pamphlets drawing attention to the treatment of Falun Gong practitioners by the authorities in China. It also rejected the Applicant’s claim that his friends were arrested on 20 July 2009 and that the PSB visited the Applicant’s home looking for him on 18 September 2009.
The Tribunal’s findings were open 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 Court. (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The Tribunal did accept that the Applicant had taken steps to learn Falun Gong exercises since he had been in Australia and had been attending Falun Gong practice in Campsie as claimed. However, having regard to the Tribunal’s comprehensive rejection of the Applicant’s claims to have been involved in Falun Gong in China, the Tribunal was not satisfied that the Applicant engaged in conduct in Australia otherwise than for the purposes of strengthening his refugee application. Accordingly, the Tribunal disregarded the Applicant’s conduct in Australia in considering his claims to be a refugee in accordance with s.91R(3) of the Act.
As stated above, counsel for the Applicant conceded that there was no other error apparent on the face of the Tribunal’s decision record or its review.
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 sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 16 March 2011