SZOWJ v Minister for Immigration
[2011] FMCA 512
•22 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOWJ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 512 |
| MIGRATION – Migration Review Tribunal – judicial review – jurisdictional error – procedural fairness – privative clause decision not open to review. |
| Migration Act 1958 (Cth), ss.474, 424aa |
| Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 SZORV v Minister for Immigration and Citizenship [2011] FMCA 113 SZOXR v Minister for Immigration and Citizenship [2011] FMCA 186 |
| Applicant: | SZOWJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2740 of 2010 |
| Judgment of: | Burnett FM |
| Hearing date: | 22 June 2011 |
| Date of Last Submission: | 22 June 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 22 June 2011 |
REPRESENTATION
| The applicant appeared on his own behalf |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application filed 20 December 2010 be dismissed.
That the Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $5865.00 pursuant to Schedule 1, Part 2, Item 1 (c) Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SYG 2740 of 2010
| SZOWJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Following a hearing before the Tribunal, the Tribunal’s decision made 26 November 2010 was to affirm the decision of the delegate not to grant her a Protection (Class XA) visa. The applicant is a 37 year old PRC national from Liaoning who arrived in Australia as a dependent on a Business (Long Stay) Visa. She arrived with her husband on 19 March 2007, and she worked at a meatworks in Queensland. Prior to her most recent entry, she had travelled to China and returned to Australia in December 2008 and January 2009, respectively. After receiving the Tribunal’s decision, she made application on 20 December 2010 for judicial review of the Tribunal’s decision. She identified three grounds in the application. They are:
a)the Tribunal considered her case unfairly; it doubted her claim without substantive evidence;
b)the Tribunal denied her procedural fairness;
c)the Tribunal did not consider her situation in China and, in particular, that she would be put in gaol if she was to return.
Generally speaking, the court has only defined powers to review. It cannot review a privative clause decision. The Migration Act 1958 (Cth) (the Act) provides that a decision of the Tribunal is a privative clause decision. However, if the decision of a tribunal contains a jurisdictional error the decision is not protected by s.474 of the Act, and is subject to judicial review. The concept of judicial review, which has now been addressed in numerous cases, is best summarised by the observations of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf[1] where they referred, with approval, to a passage in Craig v South Australia[2] which held that an administrative tribunal:
“…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
[1] [2001] HCA 30; (2001) 206 CLR 323
[2] [1995] HCA 58; (1995) 184 CLR 163
For present purposes, the Minister may only grant a visa if the Minister is satisfied that the criteria described for that visa by the Act and regulations have been satisfied. The relevant regulations are those applying to a (Subclass 866) Protection Visa. As I have earlier noted, the Minister was not satisfied and the Tribunal affirmed the Minister’s decision. The court has no power to review unless the applicant can make out grounds of jurisdictional error. Turning, then, to the matters advanced on behalf of the applicant.
Ground 1
The Tribunal has considered her case unfairly and doubted her claim without substantive evidence. The applicant’s contention as expressed in the application is in two parts. The first is the Tribunal failed to consider the applicant’s case fairly, and the second is that the Tribunal doubted her claim without demonstrating with evidence why it doubted her evidence.
In oral submissions, the applicant complained that in part her case was not put properly because of fault on the part of her migration agent. Further, that the Tribunal regarded the application without any evidence and therefore decided against the provision of a visa on that basis. She complained the Tribunal gave her “a hard time”, and particularly in relation to her allegations concerning involvement in Falun Gong, including questions of the association between that and her child.
As was submitted by the respondent, the record demonstrates that there was a considerable body of material placed before the Tribunal by way of evidence. That material included not only the source material provided by the applicant in her application, but also that additional material which the Tribunal sought to have the applicant comment upon, consistent with its obligations under s.424AA. In another context, the applicant herself acknowledged that the Tribunal proceeding took approximately five hours. Undoubtedly, during the course of that proceeding, much material was canvassed by the Tribunal.
In part, it would seem that the applicant’s complaint includes a complaint that the decision did not comprehensively address each of the matters which she raised and, in particular, did not disclose to her its subjective thought processes. However, as was said in SZOXR v Minister for Immigration and Citizenship,[3] it is well established that the Tribunal’s subjective appraisals, thought processes or determinations do not impose any obligation on the Tribunal to put those matters to the applicant. Similarly, in SZORV v Minister for Immigration and Citizenship[4] the court said:
[3] [2011] FMCA 186
[4] [2011] FMCA 113
“In ground one the applicant complains that the Tribunal considered her case “unfairly” and doubted her claim without substantive evidence.
To a great extent this complaint misconceives the Tribunal’s relevant statutory duty. The effect of s.65 and s.36(2) of the Act is that the Tribunal must reach the requisite level of satisfaction that, in effect, the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention before a protection visa must be granted.
…
As Ms Warner Knight submitted, the Tribunal does not need to have “substantive evidence’ upon which to reject the applicant’s claims. … The Tribunal’s obligation is to provide her with the appropriate opportunity to do so. On what is before the Court this occurred.
I cannot see in the current circumstances that the Tribunal was under any obligation to investigate the applicant’s claim in such a way as to attempt to make them. Nor does the Tribunal need to seek out any rebutting evidence before finding that a claim or assertion is not made out.
Also as Ms Warner Knight submits the Tribunal did not have to uncritically accept the applicant’s claims, nor any part of them. It is for the applicant to present her evidence such that the Tribunal can be satisfied that the relevant elements of the definition of refugee are made out.
As to the complaint that the Tribunal acted unfairly, to the extent that this cavils with the outcome then this merely seeks impermissible merits review. The Tribunal’s obligation to act fairly is concerned with the procedures adopted, not the outcome.” (Citations omitted).
In this case, that extract has equal application. The applicant was under a duty to make her case to the Tribunal, but the Tribunal was under no obligation to accept her evidence uncritically, or inquire, nor provide contradictory evidence in its decision if it chose to doubt or reject her evidence, as it did in this case. It follows, in my view, that so far as the first part of ground 1 is concerned, it is misconceived in that it simply reveals a mere unhappiness by the applicant with the decision, and seeks for the court to effect a merits review, which is impermissible.
So far as the second part of the first ground is concerned, it is again, with respect, misconceived, for the Tribunal has provided adequate explanation of the process leading to the conclusion resulting in the contested decision.
The second ground in terms of complaint is that the Tribunal denied the applicant procedural fairness. In her oral submissions she made two complaints; the first was that the hearing lasted five hours. As was submitted by the respondents, there is no evidence to demonstrate that any application was made for adjournments or other breaks, and that any applications were unreasonably or capriciously refused. As was submitted by the respondent, a period of five hours is not an inordinately lengthy time for a hearing of this kind. I do not think that complaint enlivens a basis for denial of procedural fairness.
The next complaint was that the Tribunal appeared to ask questions that were inconsistent with her statement. However, given the nature of the Tribunal process, which in part is inquisitorial, the nature of questioning of, and addressing of, inconsistencies is not unusual.
It can be seen by reference to the Tribunal’s decision, and in particular in the section entitled Findings and Reasons, that the Tribunal has used the material which it has collected, including inconsistencies which were apparent to the Tribunal from that material and the request by the Tribunal of the applicant to answer questions addressing those inconsistencies that has ultimately led to the Tribunal’s conclusions. The conclusions of the Tribunal in that respect are, ultimately, questions of fact based upon findings of credit. And, as has been authoritatively stated by the High Court in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[5] are matters for the Tribunal par excellence.
[5] [2000] HCA 1; (2000) 168 ALR 407
This ground does not reveal jurisdictional error. I should indicate, in addition, the Tribunal’s reasoned explanation provided in its decision demonstrates that its approach to the resolution of these issues of credit was not arbitrary or capricious as was contended by the applicant in her reply, but based upon a careful examination of the evidence by the Tribunal.
In the third ground, the applicant complains the Tribunal did not consider her situation in China and that she would be put in gaol if she was to be returned. As was contended by the respondents in their outline, the Tribunal did consider this matter but rejected it. The Tribunal’s finding in respect of this matter is a matter of fact based upon the merits. It is not to the point that the applicant complains, for instance, in respect of the internet search for records of imprisonment of her sister having been defectively conducted.
The Tribunal’s conclusion on this matter is one which was achieved following a consideration of the material placed before it, which included an assessment of the applicant’s reliability as a witness of truth. What the applicant really seeks on this ground is impermissible merits review. In the circumstances, the applicant has failed to demonstrate any jurisdictional error on the part of the Tribunal.
The Tribunal’s decision is a privative clause decision which is not open to review, and the application is dismissed.
The respondent seeks costs. The costs sought are the costs fixed in the sum of $5865, which are the scale costs allowed pursuant to Schedule 1, Part 2, Item 1 (c) Federal Magistrates Court Rules. The applicant appears a little confused by the respondent’s application, and I take that to reflect a non-consent by her to an order for costs. In this application, being a relatively straightforward application for judicial review, there is no reason why the ordinary order ought not ensue; that being that the successful party has its costs. I order the applicant pay the respondents’ costs fixed in the sum of $5,865.00.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 21 July 2011
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