SZQGE v Minister for Immigration
[2011] FMCA 491
•29 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQGE v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 491 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether there was information that enlivened s.424A 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 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 MZYAI v Minister for Immigration and Citizenship & Anor [2011] FCA 642 |
| Applicant: | SZQGE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1015 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 29 June 2011 |
| Date of Last Submission: | 29 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2011 |
REPRESENTATION
| The Applicant appeared in person and was assisted by a Mandarin interpreter |
| Solicitor for the Respondent: | Mr Oliver Jones (Clayton Utz) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1015 of 2011
| SZQGE |
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 21 April 2011 and handed down on 21 April 2011.
The applicant claims to be a citizen of the People’s Republic of China (“the Applicant”).
The issue in this case is whether or not there was information that enlivened s.424A 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 2 February 2008 having departed legally from China on a passport issued in her own name and a Student Guardian (subclass 580) visa valid until 31 July 2008.
On 20 December 2010, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 27 January 2011, the Delegate refused the Applicant’s application for a protection visa.
On 31 January 2011, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 21 April 2011, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 19 May 2011, 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 her protection visa application in which she claimed that:
a)In May 1991, the Applicant and her husband established a seafood business in Sanshan Town.
b)In May 2008, the Applicant’s husband purchased a shop in Shanshan Town to expand their business at a cost of 400,000 RMB plus the cost of renovation.
c)In April 2010, the Sanshan Town government issued a removal notice in respect of the Applicant’s shop which required the Applicant to move out of the premises.
d)The removal notice provided that the Applicant could claim compensation at 2500 RMB per square metre, which entitled the Applicant to compensation totalling 175,000 RMB.
e)The Applicant’s husband and other business owners lodged their appeal application collectively to the Fuqing government, but did not receive any response at all.
f)On 8 November 2010, the Sanshan Town government demolished the premises including appliances and furniture in the shop. The Applicant’s husband and other shop owners clashed with police to protect their legal rights.
g)These business owners were all taken to the police station. The Applicant’s husband was detained for 15 days for interrupting official affairs.
h)The Applicant subsequently prepared a personal statement on behalf of her husband describing the hardship they had suffered and the profit they had earned.
i)On 14 December 2010, the Applicant and her husband were summoned and detained again by police for making an ‘illegal appeal’.
j)The Applicant was ordered to go to Sanshan Police Station on 14 January 2011 for interrogation.
k)The Applicant is currently living with ‘intensive mental pressure’ and is worried about her husband who remains under the government’s supervision in China. The Applicant fears that if she were to return to China, she will be persecuted by the Chinese government.
The Delegate’s decision
On 20 January 2011, the Applicant attended an interview with the Delegate.
On 27 January 2011, 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 Delegate found the Applicant’s description of the location of the seafood business to be vague and evasive and found the Applicant was unable to provide immediate responses. The Delegate found that the Applicant did not provide any further reasons at the interview for a fear of persecution beyond an assertion that her husband was persecuted and that she complained to the government about what had happened to her business. The Delegate noted that the Applicant did not mention at the interview further written claims made by her about being summoned and interrogated by police because she was the co-owner and “information provider” in relation to her husband’s appeal to the Chinese authorities.
The Delegate noted that the Applicant claimed to know nothing of documents provided by her migration agent in support of her claims. Ultimately, the Delegate found the documents to be manufactured and contrived for the sole purpose of supporting the Applicant’s claim for protection.
The Delegate found that multiple inconsistencies and contradictions of the Applicant’s claims at the interview indicated that the Applicant was not a credible witness. The Delegate rejected comprehensively the Applicant’s claims on the basis it was not satisfied as to the credibility of the Applicant or the veracity of her claims.
The Tribunal’s review and decision
On 31 January 2011, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 4 February 2011, the Tribunal wrote to the Applicant informing her 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 4 March 2011 to give oral evidence and present arguments.
On 4 March 2011, the Applicant attended the Tribunal hearing and gave evidence.
On 8 March 2011, the Tribunal received a statutory declaration from the Applicant and a statutory declaration from the Applicant’s son.
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 and comprehensively rejected her claims of past harm or ever having been interrogated by the police in China. Further, the Tribunal rejected the Applicant’s claims that she and her husband had 2 seafood businesses, one of which was demolished by the government and that the Applicant’s husband was detained twice and assaulted.
The Tribunal accepted that the Applicant is married and has a son studying in Australia and another son in China with a serious mental condition that causes her concern. The Tribunal accepted that the Applicant travelled to Australia in February 2008 and that she remained unlawfully in Australia because it was her intention to earn some money and spend time with her son in Australia. That finding is consistent with information provided by the Applicant during her initial departmental interview and with evidence given by her to the Tribunal that she wished to look after her son and wanted to stay in Australia to help her son. The Tribunal found that when the Department detained her, she did not wish to return to China because she hoped she could remain in Australia to remain with her son and earn some money.
Ultimately, the Tribunal affirmed the decision under review because of its finding that the Applicant was not credible or truthful in relation to her Convention claims. In support of that finding, the Tribunal referred to inconsistent information given by the Applicant in her Student Guardian visa application and internally inconsistent evidence given by the Applicant at the Tribunal hearing.
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 16 June 2011, the Applicant attended a directions hearing before me. I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The Applicant confirmed that she 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, as well as submissions in support.
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 her own language.
At the commencement of the hearing, the Applicant confirmed that she had not filed any evidence or submissions in support of her application. However, she confirmed that she now relied on the grounds contained in an amended application filed on 29 June 2011 as follows:
“1. The Second Respondent (“the Tribunal”) committed jurisdictional error by failing to comply with the mandatory provisions of s 424A of the Act, by failing to give the Applicant particulars of information that the Second Respondent considered would be the reason, or part of the reason, for affirming the decision under review.
Particulars
(a) At the oral hearing the Tribunal discussed with the Applicant information she gave to the First Respondent at interview following her detention and prior to her application for a subclass 866 Protection visa which was seen as inconsistent with information and documents provided in the Protection visa application [see paragraphs 62-63 of the decision, and oral recording CD # 1 @ 2:08:13 – 2:15:57].
(b) The Applicant’s motivations in remaining in Australia were relevant to the Tribunal’s consideration of the claims [see paragraph 80 of the decision].
(c) The difference/inconsistency in evidence was “information” for the purpose of s.424A of the Act. However that adverse information was not put to the Applicant in writing pursuant to s.424A of the Act or appropriately orally at the hearing under s.424AA of the Act.
(d) By way of contrast, at the oral hearing the Tribunal discussed with the Applicant information and material provided by (or on behalf of) the Applicant in her prior application for a subclass 580 student-Guardian visa and possible inconsistencies with information and documents provided in the Protection visa application [see paragraphs 51-55 of the decision]. This specific information was appropriately addressed orally with the Applicant pursuant to s.424AA of the Act [see paragraph 54, & oral recording CD # 1 @ 1:13:50 and following].
2. The panel advisor notes the decision of the Federal Court in MZYIA v MIAC & RRT [2011] FCA 642, Gray J, 8 June 2011 which set aside a decision of the Refugee Review Tribunal in circumstances that the panel advisor considers directly relevant to this case.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
In support of her application to this Court, the Applicant said that she could not understand any letter and that she had not listened to the Tribunal tapes and that no one had interpreted them for her. She said that she would be persecuted if she returned to China. The Applicant was unable to make any relevant or meaningful submission in support of the grounds of her application or in support of her application generally.
Ground 1
Ground 1 appears to assert that the Applicant’s motivation in remaining in Australia to be with her son and earn money was information that enlivened the obligations of s.424A of the Act and therefore was information that the Tribunal was required to give to the Applicant either in accordance with s.424A of the Act or s.424AA of the Act.
The amended application at ground 1(b) refers to paragraph 80 of the Tribunal’s decision record. Neither the amended application nor any oral submission by the Applicant was able to clarify further the complaint the Applicant has about paragraph 80 of the Tribunal’s decision.
Doing the best the Court can, it would appear that the relevant part of paragraph 80 about which the Applicant probably complains in ground 1 of the amended application, is as follows;
“The Tribunal notes that the applicant remained unlawfully in Australia for a period of over two years. It is the Tribunal’s view that when the Department detained the applicant she did not wish to return to China because she hoped she could remain in Australia to be with her son and to earn some money. It is the Tribunal’s view that had the applicant not been detained by the Department she would have continued to work in Australia for as long as possible.”
Assuming that this is the relevant part of paragraph 80 about which ground 1 of the amended application is intended to complain, the first sentence is clearly a statement of fact.
The second sentence, that it was the Tribunal’s view that, when detained, the Applicant did not wish to return to China because she hoped to remain in Australia with her son and earn money, would appear to be information given by the Applicant to the Tribunal for the purposes of her review application.
In its decision record, the Tribunal refers to evidence given by the applicant at the Tribunal hearing that refers to that specific information. The Tribunal referred to the following evidence in a discrete paragraph under the heading “MRT file”. It is set out in full as follows:
“During her evidence before the Tribunal, she stated that a friend told her there were jobs on a farm so she worked at different locations. She said she visited her son every two weeks and cooked for him. She said she then returned to the farm and after her Student Guardian visa expired, she continued to work and her friend told her she could get permanent residence through a Protection visa; so she told the Department officer about that. She stated that she wanted to look after her son and she wanted to stay in Australia to help her son. She told the officer that she did not want to leave Australia because of persecution.” (Emphasis added).
A fair reading of the those words by the Tribunal make clear that the Applicant told the Tribunal at hearing that a friend had told her that there were jobs on a farm so she worked at different locations and she visited her son every two weeks and cooked for him. She then said that she returned to the farm and after her Student Guardian visa had expired she continued to work. She then said that her friend told her that she could get permanent residence through a protection visa and that she had told the Department officer about that. She then told the Tribunal that she wanted to look after her son and wanted to stay in Australia to help her son. She told the Tribunal that she had told the Department officer that she had not wanted to leave Australia because of persecution.
That evidence supports the Tribunal’s finding, referred to above, that Applicant did not wish to return to China because she hoped she could remain in Australia to be with her son and earn some money. That finding is consistent with the evidence by the Applicant given to the Tribunal at hearing and referred to above.
The Tribunal’s assessment of that evidence led the Tribunal to conclude that, had the Applicant not been detained by the Department, she would have continued to work in Australia for as long as possible. That finding is no more than an evaluation and conclusion by the Tribunal of the evidence before it. There is no suggestion that it is inconsistent with the Applicant’s evidence. Even if it was, that finding would be open to the Tribunal on the evidence and material before it and for the reasons it gave.
I do not accept that it was information that enlivened s.424A of the Act as asserted in ground 1(c) of the amended application. The Tribunal’s finding of the Applicant’s motivation for remaining in Australia was no more that the Tribunal’s reasoning or thought processes in considering the evidence before it. It is well established that such information is excluded from the obligations of s.424A of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17] – [18]).
In the circumstances, the Tribunal’s finding about the Applicant’s motivation for remaining in Australia, was capable of grounding the Tribunal’s finding that the Applicant did not have a well founded fear of persecution for a Convention reason if she returned to China.
As stated above, the Tribunal’s findings were open to it on the evidence and material before it, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] ). Accordingly ground 1 of the amended application is not made out.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 asserts that the circumstances of the case before this Court are similar to the circumstances in MZYIA v Minister for Immigration and Citizenship & Anor [2011] FCA 642 (“MZYIA”) where Gray J set aside a decision of the Refugee Review Tribunal.
There was no further clarification of ground 2 provided to the Court either by way of further particulars, written or oral submissions. MZYIA was a case where the Refugee Review Tribunal made use of Departmental notes in making adverse findings against the appellant. The Tribunal found that the notes at the interview contained information that undermined the appellant’s claims. The Court held that, in the circumstances, that was information that enlivened the obligations of s.424A(1) of the Act.
In the case before this Court, there was no such use by the Refugee Review Tribunal of information provided only to the Department. As stated above, the Applicant told the Tribunal that she wished to remain in Australia to be with her son and to earn some money. The Tribunal accepted that evidence by the Applicant and found, accordingly, that when the Department detained her she did not wish to return to China and that, had the Applicant not been detained by the Department, she would have continued to try and work in Australia for as long as possible. As stated above, those findings were open to the Tribunal on the evidence before it and those findings of themselves do not enliven any obligation under s.424A of the Act.
Accordingly, ground 2 is not made out.
Conclusion
The Tribunal outlined the key aspects of the Applicant’s claims that it found not to be credible. They related to the inconsistency in information provided in her Student Guardian visa application and evidence given to the Tribunal. That information was given to the Tribunal at the hearing pursuant to s.424AA of the Act and no complaint is made by the Applicant that it was not. Indeed, ground 1(d) concedes that this information was addressed orally with the Applicant pursuant to s.424AA of the Act.
The Tribunal rejected as not genuine documents provided by the Applicant in support of her claims due to inconsistencies in evidence given to the Tribunal at hearing and inherent concerns that the Tribunal had about the genuineness of her documents. Those concerns were put to the Applicant during the hearing and the Tribunal noted the Applicant’s responses. However, ultimately, the Tribunal was not persuaded by the Applicant’s responses and explanations. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. I note that no complaint is made in the amended application about the Tribunal’s adverse findings with respect to the Applicant’s documents.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
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 fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 29 July 2011
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