SZPZP v MINISTER FOR IMMIGRATION & ANOR
[2011] FMCA 406
•31 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZPZP v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 406 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 56, 65, 424, 424A, 424AA |
| Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 SZKCQ v Minister for Immigration (2008) 170 FCR 236 |
| Applicant: | SZPZP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 403 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 31 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2011 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Mr M Alderton Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 403 of 2011
| SZPZP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 9 March 2011 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 February 2011. The Tribunal affirmed a decision of the 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 23 May 2011.
The applicant is a citizen of the People’s Republic of China (PRC) who arrived in Australia on 7 March 2010 (court book (CB) 13) and applied for a protection (Class XA) visa on 8 June 2010: CB 1-24. The applicant provided copies of pages from his passport with that application: CB 29-45.
In a typed four page statement submitted with his protection visa application, the applicant claimed that he had been the deputy manager of a mill, which was suddenly closed down in January 2010. The applicant led a protest by staff against the corruption in the sale and closure of the mill. This led to his arrest and detention for three nights in January 2010. He claimed that Mr Li (the chief of the Textile Industry Bureau) falsely accused him of corruption, bribery and having extramarital affairs. He also claimed that the police visited him at home and he was forced to go into hiding until he fled to Australia: CB 25-28.
The delegate’s decision
On 6 August 2010, a delegate of the Minister invited the applicant to attend an interview on 27 August 2010: CB 51-52. The applicant attended that interview and gave evidence in support of the claims made in his protection visa application: CB 58.1.
In a decision dated 1 September 2010, the delegate refused to grant the applicant a protection visa: CB 57-65. The delegate was not satisfied that the applicant was involved in petitioning the Chinese government concerning the closure of the factory. Accordingly, the delegate was not satisfied that the applicant would have been involved in activities which would have been construed as anti-government: CB 63.9.
The delegate also found that the applicant had provided extremely vague answers to the persons assisting him in preparing his visa application: CB 64.1. The delegate noted that the applicant had obtained a passport on 1 November 2006 that had not been cancelled or confiscated following the incidents in January 2010, which was unlikely if he was of genuine interest to the authorities: CB 64.3. The applicant was able to leave China on 6 March 2010 without being stopped or questioned which the Tribunal considered to be extremely unlikely if he was a person of interest to the Chinese authorities: CB 64.5. Further, the applicant arrived in Australia on 7 March 2010, however only made the application for a protection visa on 8 June 2010 following the expiry of his tourist visa. The delegate considered that had the applicant held a genuine fear of persecution, he would have applied for protection much sooner: CB 64.7.
The delegate was therefore not satisfied that the applicant had suffered persecution or mistreatment in the past or that he faced a well-founded fear of harm if he returned to the PRC: CB 64.9-65.1.
The Tribunal’s proceedings
On 16 September 2010, the applicant lodged an application for review with the Tribunal to review the delegate’s decision: CB 66-69.
By a letter dated 24 September 2010, the Tribunal invited the applicant to attend a hearing before the Tribunal on 28 October 2010: CB 71-72.
The applicant accepted the invitation (CB 73-74) and attended the hearing and gave evidence on 28 October 2010: CB 75-77; CB 98-104, pars 35-65.
By a letter dated 14 January 2011, the Tribunal invited the applicant to attend a further hearing before the Tribunal on 17 February 2011: CB 79-80.
The applicant accepted the invitation to the further hearing (CB 81-82) and attended the further hearing and gave evidence on 17 February 2011: CB 83-85; CB 104-109, [66]-[88].
The Tribunal decision states that the Tribunal explained that the applicant had been invited to a further hearing as the Tribunal had information that might form the reason or part of the reason for refusing the visa: CB 105, [67]. The Tribunal explained to the applicant that it had made enquiries of the Department of Foreign Affairs and Trade (DFAT) concerning whether there was a mill at the location given by the applicant and that DFAT had responded that in its opinion there was no mill at this site: CB 104, [67]-[69].
In purported compliance with s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”), the Tribunal read verbatim to the applicant the enquiry that the Tribunal had made of DFAT and the response it received. The applicant responded at the hearing and provided a written response on 25 February 2011 (CB 88-89).
The Tribunal’s decision
In a decision dated 28 February 2011, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a protection visa: CB 91-116. The Tribunal accepted on the basis of the applicant’s “Hukou” (Chinese registration card) that he had been employed at the mill at the time that the Hokou was issued (namely, 17 May 2002). The Tribunal, however, rejected the remainder of his claims: CB 111, [96].
The Tribunal found on the basis of the advice it had obtained from DFAT that it had significant doubts regarding the recent existence of the Mill at the location given by the applicant: CB 112, [100]. The Tribunal also found that the applicant had given inconsistent evidence about a number of significant issues which caused the Tribunal to find that he was not a witness of truth: CB 112, [101].
In particular, the Tribunal found that the applicant’s failure to mention in his protection visa application or at the delegate’s interview that he had gone into hiding before fleeing to Australia was a significant omission that undermined the credibility of his claims: CB 112, [101]-[102]. The Tribunal also found that the applicant had given inconsistent evidence about when he allegedly learned about the sale price of the mill and the identity of the purchaser: CB 113-114, [103]-[106]. The Tribunal did not accept the applicant’s explanation for these inconsistencies namely, that he had developed a fear of being questioned following his experience of interrogation in the PRC: CB 113, [104]. The Tribunal found that the applicant had shown a tendency to tailor his evidence in response to the Tribunal’s questions and concluded that he was not a witness of credit: CB 113, [104].
The combination of these concerns led the Tribunal to reject the applicant’s claims that he had protested against the closure of the mill, that he was arrested in January 2010, or that he was of ongoing adverse interest to the authorities: CB 114, [107]. The Tribunal found further that the applicant had not made any claims to fear harm in the PRC on the basis of his purported practise of Christianity in Australia: CB 115, [108].
Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution if he returned to the PRC now or in the reasonably foreseeable future: CB 115, [109].
The present application
These proceedings began with the show cause application filed on 9 March. On 30 March 2011 I made procedural orders, including an order giving the applicant the opportunity to file an amended application and additional evidence. He has not taken up that opportunity.
The applicant did not appear in person when the matter was called for hearing this morning, but the Court was successful in contacting the applicant by telephone. He told me, through the interpreter engaged for today’s hearing, that he did not wish to attend court and neither did he wish to discontinue his application. He asked the Court to determine the application in his absence. That I am now doing.
The Minister’s submissions recite the grounds in the show cause application and deal with those grounds. I agree generally with those submissions.
The application filed on 9 March 201 lists three unparticularised grounds of review in the following terms:
1.There exits lack of procedural fairness.
2.There exits error in the application of law.
3.The facts were not ascertained and wrong decision were made based on insufficient evidence. (sic)
The applicant’s affidavit affirmed on 7 March 2011 does not contain any further grounds of review or any particulars of the grounds raised in the application. Despite orders allowing the applicant to file and serve any amended application and any affidavit evidence by 27 April 2011, nothing further has been filed by the applicant. The grounds are mere assertions of error and in the absence of particulars are meaningless.
The Tribunal was required to comply with its procedural obligations and entitled to exercise its procedural powers under Part 7 of the Migration Act. The applicant has not identified any error by the Tribunal in that regard.
The Tribunal was expressly empowered to get the information it obtained from DFAT pursuant to ss.56(1) and 424(1) of the Migration Act. The only limitation on this power was that the Tribunal had to have regard to the information in making its decision, which it did.[1] Further, there was no denial of procedural fairness in circumstances where the applicant was given the opportunity to comment on the information pursuant to s.424AA of the Migration Act, such that s.424A(2A) applied and there was no obligation on the Tribunal to comply with s.424A.[2]
[1] Minister for Immigration v SZKTI (2009) 258 ALR 434 at [37]
[2] Minister for Immigration v SZKTI, op. cit. at [38]
On the basis of the Tribunal’s decision-record, it is clear that the Tribunal took appropriate steps to ensure that the applicant understood, as far as was reasonably practicable, why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision under review.[3] Further, and in compliance with ss.424AA(b)(ii) and (iii), the Tribunal orally invited the applicant to comment on or respond to the information and advised him that he may seek additional time to do so: CB 105, [67], 108, [83] and CB 109, [88]. The applicant elected to respond orally (CB 105, [70] and CB 109, [84]), and the Tribunal also adjourned the hearing for a period of 20 minutes to allow the applicant further time to consider his response: CB 108, [83].
[3] cf SZKCQ v Minister for Immigration (2008) 170 FCR 236
Whilst the applicant informed the Tribunal at the conclusion of the second Tribunal hearing that he did not require a further opportunity to respond to this information, he provided a written response to the Tribunal on 25 February 2011 (CB 88-89) which the Tribunal considered: CB 109-110, [89]-[92].
The applicant does not identify the manner in which the Tribunal is said to have erred in its application of the law. The relevant statutory scheme (ss.65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out, relevantly, in s.36(2). Satisfaction of the criteria for the grant of the visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention.[4] There is no legal principle which requires the Tribunal to give an applicant the benefit of the doubt.[5] Nor is the Tribunal under any obligation to uncritically accept any and all allegations made by an applicant.[6]
[4] SJSB v Minister for Immigration [2004] FCAFC 215 at [14]-[16]; SZBCS v Minister for Immigration [2005] FMCA 25
[5] SZHISv Minister for Immigration [2006] FCA 1641 at [10]- [11] per Jacobson J
[6] Randhawa v Minister for Immigration (1994) 124 ALR 265 at 278
The third ground disagrees with factual findings (not particularised) of the Tribunal and seeks to invite the Court to engage in impermissible merits review. The Tribunal was not required to accept the applicant’s claims at face value and the weight to be given to his claims was a matter for the Tribunal to assess as part of its fact-finding function.[7] The Tribunal’s adverse credibility findings were open to it on the evidence before it and cannot be challenged by the Court.[8]
[7] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282
[8] Minister for Immigration v Wu Shan Liang, op. cit at 272
It is apparent on reading the material in the court book, which I received as evidence, that the applicant received assistance with his protection visa application and with his review application to the Tribunal.
The Tribunal, at the first hearing it conducted, explored with the applicant what that assistance had been, noting that the applicant had stated in his protection visa application that he received no assistance in preparing it (CB 8 and question 14 on the protection visa application form). The applicant told the Tribunal that he had been assisted by various friends he had met in Australia who apparently came from his home town. No migration agent was identified, either to the Minister’s Department or to the Tribunal. It is impossible to say whether the applications to the Department, to the Tribunal or to this Court were fostered by anyone for pecuniary gain and whether there was any migration agent, either registered or unregistered, involved. What can be said is that the Tribunal had serious credibility concerns about the applicant’s claims, and on exploring those concerns with the applicant they were not resolved.
The decision of the Tribunal turned on its adverse credibility conclusions in relation to the applicant’s claims. The applicant has chosen not to appear in court in order to deal with any issues that might have arisen in relation to the Tribunal decision. That is, of course, a matter for him. On the material before me I am unable to conclude that there is any arguable case of jurisdictional error by the Tribunal.
I will accordingly dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event. The Minister seeks an order for costs in accordance with the court scale. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 6 June 2011
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