SZOXC v Minister for Immigration
[2011] FMCA 241
•11 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOXC v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 241 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – applicant not believed – no reviewable error found – application dismissed. PRACTICE AND PROCEDURE – Referral of judgment to the OMARA. |
| Migration Act 1958 (Cth), ss.420, 424A, 425 |
| Minister for Immigration v SZMDS (2010) 240 CLR 611 SZOOI v Minister for Immigration & Anor [2010] FMCA 816 SZOWH v Minister for Immigration & Anor [2011] FMCA 192 |
| Applicant: | SZOXC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 11 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2011 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr J A C Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Court directs that a copy of these reasons is to be provided to the OMARA for such action as it considers appropriate.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2 of 2011
| SZOXC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 9 December 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts relating to the applicant’s protection visa claims and the decisions of the delegate and the Tribunal on them is derived from the Minister’s written submissions filed on 1 April 2011.
The applicant is a 28 year old citizen of China.[1] He arrived in Australia on 11 February 2010[2] travelling on a visitor visa.[3]
[1] Court Book (“CB”) at 1-2.
[2] CB at 3.
[3] CB at 38.
On 11 May 2010 he lodged an application for a protection (Class XA) visa.[4] In that application he claimed to have organised activities against the corrupt communist dictatorship in China, and that owing to his activities he had been arrested and detained by the Public Security Bureau (“PSB”). He claimed that he had had to leave China in order to escape from persecution by the PSB authorities.[5]
[4] CB at 1-39.
[5] CB at 7.
The applicant claimed to be plumber and electrician, and that in January 2008 he had contracted to work on a big project with Fuqing Xinshiji Real Estate and Development Co Ltd (“Xinshiji Company”) to install water pipes and electricity for an eighteen storey building. He said that the project started in February 2008 and was completed in January 2009. He claimed that in order to complete the project he had recruited 29 people. The applicant claimed that the Xinshiji Company had failed to pay the full amount due for the work on the project, and that during January to April 2009, he had approached the company many times but could not get paid. He claimed that eventually he had had a meeting with the Xinshiji Company which had led to a dispute in which his documents were seized by security guards, who then beat him heavily with rubber sticks.[6]
[6] CB at 8-9.
After that he claimed that he took his complaint to various courts and government bureaus, including the PSB, but did not receive any help. He claimed that the solicitors he had approached were scared by threats from the Xinshiji Company and he could not obtain any protection or help.[7]
[7] CB at 10.
He claimed that on 18 September 2009 he organised his former co-workers to go to the Xinshiji Company headquarters and that there were over 100 people who attended. He claimed that they staged a sit-in protest, sitting peacefully in front of the headquarters holding big banners and urging the company to pay the amounts outstanding. Not long after the start of the sit-in, security guards came out and beat them cruelly with rubber or wooden sticks, and in defence of themselves some of the protestors fought back. Later on, many police were said to have arrived. They did not stop the security guards, but dispersed the protestors with their truncheons. He claimed that the police arrested him asserting that he had organised an anti-government protest before the 60th anniversary of the establishment of New China.[8]
[8] CB at 10.
The applicant claimed that from 18 September to 18 December 2009 he was detained for three months, and during this period the police, who had been bribed by the Xinshiji, Company were ordered to “teach” him, via various cruel methods, and that the police ordered criminals who had been detailed with him to torture and mistreat him. He also claimed that he had been forced to undertake punitive jobs in prison. He said that he had suffered from serious illness and in that situation the police had released him on bail after his wife bribed them. He claimed that he was required to report to the PSB once a week and was warned not to take any further actions against the Xinshiji Company.[9]
[9] CB at 10.
He claimed that he had left China under a false name, and before he had left he had secretly organised people to distribute pamphlets protesting against the corrupt communist dictatorship, and calling for the overthrow of the communist government. He claimed that owing to the arrest of his friends, his activities were discovered by the police, but fortunately he had already left China when the police tried to arrest him.[10]
[10] CB at 10.
On 14 July 2010 the applicant was invited by the Minister’s Department to attend an interview to discuss his application.[11] He apparently attended an interview in relation to his application on 4 August 2010.[12]
[11] CB at 48-49.
[12] CB at 55.
The delegate concluded, based on the responses given during the interview, that the applicant appeared to be constructing much of testimony on the spot when questioned on various points.[13] The delegate considered the applicant’s testimony on critical points about his arrest, subsequent detention and release, to be lacking in detail.[14] The delegate also thought that the applicant had provided contradictory and inconsistent information on the claimed breach of contract at the centre of his claims.[15]
[13] CB at 65.3.
[14] CB at 65.4.
[15] CB at 66.3.
The delegate was ultimately not satisfied that the applicant was in a contract dispute with a construction company, which led to his arrest and conviction on the charge of disturbing the public order as claimed. The delegate was not satisfied that the applicant produced and distributed anti-Chinese government pamphlets prior to his departure as claimed.[16]
[16] CB at 66.7.
On 1 September 2010 the applicant sought review of the delegate’s decision by the Tribunal.[17]
[17] CB at 68-72.
The applicant attended a hearing before the Tribunal on 26 October 2010. It appears that the hearing lasted just over two hours.[18]
[18] CB at 88-89.
On 27 October 2010 the Tribunal wrote to the applicant providing particulars of information and inviting his comment.[19]
[19] CB at 91-95.
The applicant was subsequently invited to attend a second hearing on 1 December 2010.[20]
[20] CB at 96-98.
In response to the invitation to provide comments on information the applicant provided a statutory declaration made on 10 November 2010.[21]
[21] CB at 102-105.
The applicant then attended a second hearing on 1 December 2010 which lasted approximately 10 minutes.[22]
[22] CB at 107-108.
The Tribunal handed down its decision on 9 December 2010.
The Tribunal’s decision
The Tribunal did not find the applicant’s testimony to be convincing. In the Tribunal’s view the applicant was unable to explain most of his alleged actions, and gave the Tribunal the overall impression that he was merely reciting learned material rather than recounting events that had actually occurred.[23]
[23] CB at 127 at [47].
The Tribunal found that the applicant was not a credible witness in relation to when and if he approached the general manager of the Xinshiji Company, and his alleged distribution of pamphlets, which allegedly occurred after all other avenues of complaint failed. Given that those details went to the heart of the applicant’s claims, the Tribunal was not satisfied that it had been told the truth about any of the applicant’s claims. Accordingly it did not accept that it had been told the truth about the applicant working on a building site, it did not accept that he was not paid, nor that he approached the general manager to seek payment, nor that he subsequently protested, nor that he was detailed for three months or told to subsequently report. It was not satisfied he had distributed pamphlets.[24]
[24] CB at 128 at [49].
The Tribunal also considered whether the applicant’s departure from China might lead to Convention related harm. Country information suggested that if the applicant had departed illegally he might be subject to fines or detention, however there was no information that suggested to the Tribunal that such laws would be used to target particular Convention related groups. Therefore the Tribunal was not satisfied that if the applicant were subject to fines or detention because he departed illegally, that these matters would be Convention related.[25]
[25] CB at 129 at [50].
The present application
These proceedings began with a show cause application filed on 4 January 2011. There are three grounds in the application:
1. The Tribunal committed jurisdictional error of law by failing to comply with its obligations under section 425 of the Migration Act so as to give the applicant an opportunity to “give evidence and present arguments arising in relation to the decision under review”.
2. The Tribunal’s decision was infected with jurisdictional error in that the reasoning process employed by the Tribunal in reaching its decision reveals irrationality, illogicality and/or unreasonableness.
3. The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
The grounds are in template form in as much as these grounds are commonly advanced by applicants who are being assisted by the migration firm of Priscilla International. I note that the short affidavit which supported the application was witnessed by Mr Harry Huang of that firm. The applicant told me from the bar table that he is not currently being assisted by that firm.
I received as evidence the book of relevant documents filed on 21 February 2011. Both parties also made written and oral submissions.
Consideration
The applicant’s primary contention is that he was not provided with a fair hearing opportunity for the purposes of s.425 of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant says that it was apparent to him at the first of the two Tribunal hearings that the Tribunal had made up its mind. He says that that impression was reinforced at the short second Tribunal hearing.
The applicant was invited to attend the first Tribunal hearing by a letter dated 16 September 2010[26]. That letter recites, in the second paragraph, that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. As I explained to the applicant, it was the Tribunal’s inability to make a favourable decision on the papers which triggered the hearing opportunity offered to him.
[26] CB 77.
The applicant’s migration agent sent back to the Tribunal a completed Response to Hearing Invitation[27]. The applicant acknowledged the signature on the response form at CB 81. It is noteworthy that the response indicates that the applicant would attend the Tribunal hearing but there is no indication as to whether or not his agent (Ms Yu) would attend that hearing. No response was provided to the question, “Will your representative be attending?”
[27] This is reproduced at CB 79-81.
The hearing which was conducted was conducted with the applicant present but without his agent[28]. The hearing lasted approximately two hours. There is no record of what occurred at that hearing in evidence before me apart from the Tribunal’s recitation of what occurred in its reasons.
[28] See CB 88.
On 27 October 2010 the Tribunal sent the applicant an invitation to respond to adverse information, purportedly pursuant to s.424A of the Migration Act.
On 4 November 2010 the Tribunal sent to the applicant a second hearing invitation[29]. The applicant’s migration agent responded to that hearing invitation with a completed response form[30]. The applicant acknowledged signing the form at CB 101. Once again the form stated that the applicant would attend but no response was made to the question of whether Ms Yu would attend. Once again the hearing record[31] discloses that Ms Yu did not attend, although the applicant did. The hearing was a short one of approximately 10 minutes. It is apparent from the Tribunal’s record of that hearing that the purpose was to provide the applicant with notice of country information available to the Tribunal and to give the applicant the opportunity to respond to it.
[29] CB 97.
[30] CB 99-101.
[31] CB 107.
A fair reading of the Tribunal decision suggests that the Tribunal had doubts about the applicant’s claims at the time of the first Tribunal hearing. That of course was the reason why the applicant was invited to both hearings. If the Tribunal had been able to make a favourable decision no hearing would have been required.
It is a very rare case where bias, either actual or apprehended, can be discerned from the record of the Tribunal decision alone. That is the only evidence of what occurred at both hearings. There is nothing in that record to persuade me that the Tribunal had a closed mind at the time of the hearings.
The Tribunal was concerned to put before the applicant and to test what appeared to be inconsistencies and implausibilities in the applicant’s account of what occurred in China. Far from indicating an unfair hearing, it indicates a concern on the Tribunal’s part to disclose the essential and significant credibility issue on which the review was likely to turn. It is apparent that the applicant came away from the two Tribunal hearings with the impression that he was not believed. That may have been an accurate impression. However, that does not equate to an arguable proposition that the hearing opportunity was not a fair one.
It is a concern to me that the applicant’s representative did not attend either Tribunal hearing. It is a particular concern to me that the applicant’s representative failed to disclose to the Tribunal whether or not she would attend either hearing. The facts that the two hearing invitation responses were sent by the representative herself to the Tribunal and, in both cases, and consistent with other matters, no answer was given to the question whether the agent would attend, leads me to the view that this was a deliberate decision to not disclose the representative’s intentions.
The applicant was able to give me no explanation for the non-attendance at either Tribunal hearing of his migration agent. I have previously said that an agent who habitually fails to attend Tribunal hearings is not reputable[32]. I have also said, more recently, that an agent must, at a minimum, turn his or her mind to the question whether they would attend a hearing to which their client is invited[33]. The failure by this migration agent on two occasions in the one matter to even indicate whether she would attend the hearing indicates to me either gross oversight or a calculated tactic.
[32] SZOOI v Minister for Immigration & Anor [2010] FMCA 816.
[33] SZOWH v Minister for Immigration & Anor [2011] FMCA 192 at [28].
To my mind, the failure to inform the Tribunal whether an agent will attend a Tribunal hearing is an insult to the Tribunal and a disservice to the agent’s client. These are matters which should be inquired into by the Office of the Migration Agents Registration Authority (“OMARA”). I will direct that a copy of these reasons be provided to the OMARA for such further action as it considers appropriate[34].
[34] In addition, it would be open to the Principal Member of the Tribunal to direct that members of the Tribunal ensure that Response to Hearing Invitation forms are completed properly: s.420A of the Migration Act.
I agree with the Minister’s submissions in relation to illogicality and the alleged breach of s.424A.
There is no substance to the second ground of alleged illogicality or unreasonableness in the Tribunal’s reasoning.
The applicant expresses strenuous disagreement with the Tribunal’s reasoning but that is not sufficient. The applicant was tested on a number of issues of fact which, in themselves, might appear minor matters. However, the Tribunal reasoned that the inconsistencies in the applicant’s account pointed to the account having been learned rather than being an account of real events.
The Tribunal, in its reasons, gives a logical and rational explanation for its reasoning process. The credibility conclusions reached by the Tribunal were open to it on the material before it.
The applicant contends that the Tribunal’s decision was infected with jurisdictional error in that the reasoning process employed by the Tribunal reveals irrationality, illogicality or unreasonableness. The Tribunal’s decision was squarely based upon adverse credibility findings which it had made, and which were open to it on the evidence and for the reasons which it gave. They were based on inconsistencies and implausibilities which the Tribunal identified in the applicant’s evidence, and which it regarded as significant. It was open to the Tribunal to regard those matters as significant. The Tribunal’s findings were both logical and rational, and they do not exhibit any unreasonableness in the requisite sense. The decision does not give rise to any jurisdictional error of the kind described by the High Court in Minister for Immigration v SZMDS (2010) 240 CLR 611.
There is no substance to the third ground of review. The applicant was unable to take me to any information that should have been disclosed to him that was not disclosed. In my view, the only information which might have required disclosure, pursuant to section 424A, was oral information provided by the applicant to the Minister’s Department at the interview.
The Tribunal wrote to the applicant to provide the opportunity for him to respond to that information. The Tribunal acted in purported compliance with s.424A. As a matter of law, that disclosure was probably unnecessary as the information in issue was not, on its face, adverse to the applicant’s protection visa claims. It simply provided a reference point for the Tribunal’s reasoning on the issue of inconsistency. Nevertheless, the Tribunal did not breach s.424A by making disclosure purportedly under that section out of an abundance of caution.
The applicant has failed to establish any jurisdictional error by the Tribunal. Neither is any error apparent to me from my own reading of the material. I find that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $5,200. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,200.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 15 April 2011
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