SZQWH v Minister for Immigration
[2012] FMCA 421
•28 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQWH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 421 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged denial of procedural fairness – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 424AA, 425, 425A, 426, 426A, 441A, 441C, 441G, 476 Migration Regulations 1994 (Cth) r.4.35D |
| Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162) SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 Minister for Immigration & Multicultural & Indigenous Affairs v SZFML and Anor [2006] FCAFC 152 |
| Applicant: | SZQWH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2664 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 18 May 2012 |
| Date of Last Submission: | 18 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr I Temby |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 22 November 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2664 of 2011
| SZQWH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application, made on 22 November 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 3 November 2011, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 30 July 2010 (Court Book – “CB” – CB 1 to CB 3). On 1 November 2010 the applicant applied for a protection visa (CB 1 to CB 29, with annexures). She was assisted in her application by a registered migration agent, Mr Harry Huang of Pricilla International Co. Pty Ltd (CB 30 to CB 33).
The applicant’s claims to protection were initially that:
1)Following her husband being injured at work, the applicant was forced to seek employment. She “opened” a cart selling food on the street. Despite her business being legal, corrupt officials would often confiscate her cart and force her to pay “penalties” (CB 8)
2)In January 2010 the applicant paid money to a local official to “guarantee our business safety”. However in February 2010 the same government official, along with others, confiscated her cart and money and assaulted her sole employee (CB 9).
3)In response to this incident the applicant decided to organise a protest and, on 18 March 2010, the applicant, along with 50 – 60 other street vendors, protested outside the Urban Administration Bureau (CB 9 to CB 10). The applicant was arrested and detained. The other protesters were “suppressed” by the police.
4)The applicant was released from detention on 30 April 2010. Following her release she was frequently questioned and investigated by the authorities. She felt that there was “no way for me to survive in this country”. On 27 July 2010 she departed for Australia on a false passport (CB 10).
Before the delegate the applicant added to, and expanded on, her claims to protection. In particular, she claimed that her marriage was not registered and that her child could not be registered with the authorities as she and her husband did not have the funds to pay the required social compensation fee (CB 71 and [27] at CB 129).
The Delegate
By letter dated 1 February 2011, the applicant was invited to attend an interview with the delegate on 2 March 2011 (CB 34 to CB 36). The applicant attended on that occasion (CB 65).
Prior to the interview, on 22 February 2011, the applicant’s representative provided to the delegate copies of the following documents (CB 39):
1)A business license for her claimed “stall” (CB 40 to CB 41).
2)A hygiene inspection certificate for her business (CB 42 to CB 43).
3)A medical certificate for the applicant’s husband (CB 44 to CB 45).
4)A “Certificate of Being Released from Detention”, said to relate to the applicant (CB 46 to CB 47).
On 3 March 2011 the delegate decided that the applicant was not a person to whom Australia owed a protection obligation and refused the grant of a protection visa (CB 63 to CB 74).
The delegate found that the applicant was not “… harassed, beaten, arrested, detained or otherwise persecuted for reasons of her political opinion or any political opinion imputed to her by the authorities” (CB 70). Rather, any conflict she had had with local authorities was because she had been operating an unlawful business (CB 70).
Although the applicant had not raised the issue in her application for a protection visa, because of her evidence at the interview, the delegate considered whether the applicant had a well-founded fear of harm due to her child not being registered (CB 71). The delegate concluded that the applicant would not face persecution for this reason if she returned to China (CB 72).
The Tribunal
On 31 March 2012 the applicant applied to the Tribunal for review of the delegate’s decision (CB 76 to CB 79). She was assisted before the Tribunal by the same migration agent (CB 77).
The applicant was invited to attend a hearing before the Tribunal on 23 August 2011 (CB 90 to CB 92). By letter dated 22 August 2011, sent by facsimile transmission to the applicant’s representative, the Tribunal postponed the hearing (CB 101 to CB 102). This was done at the Tribunal’s initiative and for its convenience. The hearing was ultimately listed for 25 October 2011 (CB 103 to CB 105) and the applicant and her representative attended on that occasion (CB 116 to CB 117).
The Tribunal reviewed the audio recording of the applicant’s interview with the delegate and the expansion of her claims on that occasion ([27] at CB 128 to CB 129). At the hearing the Tribunal put to the applicant its various concerns with her evidence and the inconsistencies as between her evidence given before it, before the delegate, and in her visa application (see for example, amongst others, [41] at CB 134,
[49] – [52] at CB 136 and [54] at CB 137). Further, it asked the applicant if “… she wished to add anything …” ([55] at CB 137).
By decision dated 3 November 2011 the Tribunal decided to affirm the delegate’s decision ([80] at CB 142). Its findings and reasons were set out in its decision record ([62] at CB 139 to [78] at CB 142), a copy of which was provided to the applicant (CB 121 to CB 122).
The Tribunal expressed “… concerns about the credibility of the Applicant’s account of her experiences in China” ([66] at CB 139). The Tribunal, like the delegate, was not satisfied that any conflict the applicant had had with local authorities in China was otherwise than for the fact that she had been operating an illegal business ([69] at CB 140). In coming to this conclusion the Tribunal also had regard to the documents provided by the applicant regarding her business (see [6](1) and (2) above). Given that the business license and hygiene inspection report were issued for a “stationary” business, not a mobile street cart, and that the applicant had provided inconsistent explanations for that as between the hearing and the interview with the delegate, the Tribunal was not satisfied that the documents supported her claim ([69] to [70] at CB 140).
Further, the Tribunal was not satisfied that the applicant had organised a demonstration against corrupt government official and, on that basis, did not accept that she had been arrested, detained or tortured in the circumstances claimed ([73] at CB 141). This was based on the inconsistencies and implausabilities in the applicant’s various accounts of claimed relevant events in China. Further, the Tribunal considered the “Certificate of Being Released from Detention” (CB 46 to CB 47) provided by the applicant to the Department, and, given the availability of fraudulent documents in China, found, in the circumstances, that no weight could be placed on this document as proof that the applicant was ever arrested or detained ([74] at CB 141).
The Tribunal accepted that the applicant was not officially married at the time of her son’s birth. Also that the child had not been included in either her, or the father’s, household register. However, it noted that the child would be able to be registered upon payment of the social compensation fee ([75] at CB 141 to CB 142). The Tribunal did not find credible the applicant’s claim that she would not be able to pay this fee, given the sizeable financial assistance she had received in coming to Australia (based on her own evidence), and rejected any suggestion that the applicant, or her son, had suffered discrimination or harm because of his non-registration ([76] at CB 142).
Application to the Court
The grounds in the application to the Court are in the following terms:
“1. The Tribunal failed to give me a fair chance to common on or respond to the information which the Tribunal used as a reason or part of reason to confirm the decision in relation my application for a Protection Visa.
2. At the end of the Tribunal hearing, the Tribunal indicated some of its concerns about my claims, but the Tribunal also indicated that the Tribunal had not made its decision and that the Tribunal would carefully consider my oral evidence given in the hearing. It made me believe that the Tribunal might have already accepted my evidence or at least the Tribunal would give me further chances if the Tribunal’s decision was negative.”
The applicant filed written submissions on 27 April 2012 in which the two grounds are reiterated and expanded upon, and particulars provided. The complaints raised in those submissions can be summarised as follows:
1)The Tribunal failed to give the applicant a fair chance because the Tribunal failed to provide to her the particulars of information which it said was the reason, or part of the reason, for affirming the delegate’s decision. That “information” was said to include the applicant’s interview with the delegate and documents provided by the applicant to the Department (see [6] above). [I understood this to be an expansion of, and explanation of, ground one of the application to the Court.]
2)Because of the Tribunal’s statements at the end of the hearing, the applicant believed that the Tribunal had accepted parts of her evidence and would give her a further “chance” if its decision was to be adverse to her. As a result, she did not submit any further documents, nor provide further arguments at the hearing or subsequent to it. [I understood this to be related to ground two of the application to the Court.]
3)In addition, and in support of ground one and two, the applicant asserts that, although the Tribunal did put “some information” to her at the hearing, she was “nervous” and “under huge pressure”. As a result, it was not possible for her to “genuinely understand” the Tribunal’s comments and the consequence of the information. Nor could she properly respond to the information.
Before the Court
At the hearing the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Mr I Temby appeared for the first respondent. Before the Court was the application and written submissions filed by the applicant and by the first respondent.
The applicant had also filed an affidavit, made on 18 January 2012, which annexed a transcript (“T”) of the recording of the Tribunal hearing. The transcript was said on its face to have been prepared by “Ana Zhao”, a National Accreditation Authority for Translators and Interpreters (“NAATI”) accredited translator. Notwithstanding a number of evidentiary difficulties with the affidavit and transcript, which the Minister noted, no objection was raised to the transcript being read into evidence. This was done.
At the first Court date the applicant indicated that she wished to participate in the Court’s “RRT Legal Advice Scheme”. I urged the applicant to attend to the lawyer on the panel assigned to assist her and to listen carefully to the advice provided. A certificate from that lawyer, on the Court’s file, certified that the lawyer met with the applicant and provided written advice to her.
At the first Court date I had also alerted the applicant to the fact that her grounds, as stated in her application to the Court, were deficient in a number of ways. Despite the consent orders made on that date granting leave to the applicant to file an amended application, and the opportunity afforded to her to speak to, and receive advice from, a lawyer on the panel, no amended application has been received by the Court.
At the hearing the applicant read from what appeared to be a prepared statement. In its totality the applicant added nothing to what was already in her written submissions.
Consideration
The applicant’s grounds, that she was not given an opportunity to comment on “information” adverse to her application, or to provide further explanation of her claims, are dealt with in s.424A and s.425 of the Act respectively. Both those sections appear in Div.4 of Pt.7 of the Act. Therefore the applicant’s grounds need to be seen in light of s.422B of the Act, which makes the matters set out in Div.4 of Pt.7 of the Act the exhaustive statement of the natural justice hearing rule in relation to the matters dealt with in that division (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204).
Ground One
Ground one therefore is a complaint that the Tribunal breached its obligations as set out in s.424A of the Act.
That section obliges the Tribunal to give to the applicant, for comment, any information that it considers would be the reason, or part of the reason, for affirming the delegate’s decision to refuse the grant of a protection visa. That information should be given to the applicant in writing (SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162).
The applicant’s ground asserts that the Tribunal failed to put such “information” to her. Specifically, that the Tribunal failed to provide “particulars” to the applicant in relation to her evidence at the interview with delegate, and the documents she had provided to the Minister’s department in support of her protection visa application.
There are at least three difficulties for the applicant in relation to this request.
First, even if the Tribunal’s obligation under s.424A(1) could be said to have been enlivened, the Tribunal’s obligation to give the information was caught by the exemptions in s.424A(3). The documents that the applicant provided to the Minister’s department for the purpose of her application, and her evidence before the Tribunal, are excluded from the obligation in s.424A(1) of the Act by s.424A(3)(ba) and (b) respectively. The country information referred to by the Tribunal is also excluded from the operation of s.424A(1) by s.424A(3)(a).
Second, the Tribunal’s evaluation of the applicant’s evidence and her corroborating documents, what she told the delegate at interview (not excluded by the operation of s.424A(3)(ba)), and its findings of inconsistencies are not “information” for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] – [18]). The weight to be attributed to evidence, including corroborating documents, is a matter for the Tribunal in the proper exercise of its jurisdiction (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24). In these circumstances, the Tribunal was under no obligation to put its findings and assessments to the applicant for comment.
Third, from the evidence before the Court, it is clear that the Tribunal did, in any event, put to the applicant its concerns regarding the inconsistencies in her evidence, and the explanation of those inconsistencies, before it and the delegate, as well as its assessment of her corroborating documents. The Tribunal did so at the hearing. (See, among others, [31] at CB 132, [39] – [41] at CB 134 and [49] at CB 136 and T 12 – T 15 and T 18 – T 23.) In these circumstances, even if some obligation did arise from s.424A(1), the Tribunal’s use of the facility available through s.424AA is sufficient in the circumstances to meet any such obligation (s.424A(2A) and SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415). Although the Tribunal was not obliged under s.424A of the Act to put such evaluation and appraisal to the applicant, no legal error is revealed by it doing so.
The applicant’s “concession”, almost put in the alternative, that the Tribunal did put some information to her at the hearing but that it did not provide particulars to her and failed to ensure that she “genuinely” understood the consequences if the Tribunal took an adverse view, may be some attempt to invoke the provision of s.424A(1)(b) of the Act.
Putting to one side that the Tribunal’s evaluation of her evidence is not “information” for the purposes of s.424A(1) in any event, the transcript of the hearing reveals that the consequences of the Tribunal not accepting the applicant’s evidence were made clear. See for example (T 23):
“But you didn’t seek protection as a refugee when you arrived. You could do it in the next few weeks but you waited for three months before you applied for protection. The delay of that sort can suggest that you really weren’t very worried about to get back to China. Comment on that.”
The applicant, or whoever assisted the applicant in drafting her submissions, appears to have misunderstood the Tribunal’s obligation in this regard. There is no requirement that the applicant actually understand the significance of what is being said. The Tribunal’s obligation is to “ensure, as far is reasonably practicable” that the applicant understands. This is an objective, not a subjective, test.
In all ground one is not made out.
Ground Two
Ground two asserts a breach of s.425 of the Act. Section 425(1) of the Act obliges the Tribunal to invite the applicant to appear at, and participate in, a meaningful hearing (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592).
The applicant was invited to a hearing scheduled for 23 August 2011 (CB 90 to CB 97). That hearing was postponed at the instigation of the Tribunal (CB 101 to CB 102). By letter dated 20 September 2011, sent by facsimile transmission to the applicant’s authorised recipient, the applicant was invited to attend a hearing before the Tribunal on 25 October 2011 (CB 103 to CB 105). Importantly, that second invitation, as well as the first, complied with all of the relevant statutory and regulatory requirements (ss.425, 425A, 426 and the reference to ss.426A, 441A, 441C, 441G and r.4.35D of the Migration Regulations 1994 (Cth)). As the postponement was at the Tribunal’s instigation it was required to comply with the relevant statutory period of time between the notice and the rescheduled hearing, which it did (Minister for Immigration & Multicultural & Indigenous Affairs v SZFML and Anor [2006] FCAFC 152 at [82] per Spender, French and Cowdroy JJ and s.425A(3) of the Act).
At the hearing, and as set out above, the Tribunal raised with the applicant its concerns about her evidence before it and the inconsistencies as between her evidence at the hearing, at the interview with the delegate and in her protection visa application. In doing so, the Tribunal provided the applicant with an opportunity to comment on, and respond to, the Tribunal’s concerns and to further explain her claims.
The issues that determined the review were the Tribunal’s rejection of those factual parts of the applicant’s claims relating to her claimed business and the actions of the Chinese authorities, and its inability to accept that she, or her child, had been, or would be, treated in a discriminatory fashion in China.
Both matters were discussed at the hearing. The transcript reveals that the applicant would have been on notice of both issues and was given the opportunity to put her case. In any event, in relation to the former issue, the applicant would have been on notice as a result of the delegate’s decision that her entire factual account in relation to that matter was at issue.
Further, from the transcript of the hearing and from the Tribunal’s decision record, it is clear that the Tribunal asked the applicant prior to the conclusion of the hearing “… if there was anything she wished to add …” ([55] at CB 137). This is supported by the transcript, annexed to the applicant’s affidavit of 18 January 2012, which provides (at T 23):
“… [Ms Applicant], Is there anything you want to add? To anything that you’ve said already, is there anything that is relevant that we haven’t already discussed?”
The applicant responded “No” to this question (T 24).
In relation to the applicant’s complaint that she was not aware that the Tribunal would reach an adverse decision without providing her with another opportunity to respond to its concerns and present evidence, the transcript of the hearing provided by the applicant clearly does not support that assertion.
The Tribunal made clear, at the conclusion of the hearing, that it would reach a decision on the applicant’s case based on what was before it. As is set out at T 24, and relied on by the first respondent in written submissions, the Tribunal stated that:
“I’ve been taking notes as we were going along, [Ms Applicant]. I’ll be looking very closely at everything you’ve said to get hold of all the information and the information you gave to the interviewer at the department of immigration.”
The Tribunal ultimately concluded the hearing by stating (at T 24):
“As I said earlier during this session, I will make a decision of whether or not I am satisfied that you are a refugee. I hope that won’t be too long in the future, maybe a couple of weeks. At that point the tribunal will write to you and send you a full written decision. That will set out some of the information the tribunal has and the reason for its decision …”
In the circumstances, the applicant was alert to the fact that the Tribunal member would be proceeding to a decision on the material before her. Further, the applicant had been asked if there was “anything else she wished to add” ([55] at CB 137), in response to which she said “No” (T 24). The applicant’s assertion now that the Tribunal made her believe that it had accepted her evidence, or would give her further opportunity to comment, is squarely contradicted by what plainly appears in the transcript. The applicant’s complaint to the Court that the Tribunal had misled her must, in light of a plain reading of the transcript, be rejected.
In all ground two is not made out.
It was not clear who assisted the applicant in putting her case to the Court. The applicant should consider that, in light of what has been presented, the “assistance” has been of no benefit to her.
The Applicant’s Submissions
Before the Court the applicant also complained that she was nervous and under pressure when she appeared before the delegate and that his led to difficulty in her understanding the Tribunal’s comments and the consequences for her.
There is nothing on the evidence before the Court to suggest, let alone show, that the applicant was so overcome by nerves, or felt under such pressure, that she was denied a meaningful opportunity to present her case at the Tribunal hearing or to understand the case against her.
She may indeed have felt nervous, but the question for the Court is whether any such indisposition resulted in her being denied a fair hearing. There is no evidence to support her assertion. The evidence she has presented to the Court does not reveal any failure by the Tribunal in this regard.
Conclusion
To be successful the Court would need to, at least, find jurisdictional error on the part of the Tribunal. No such error is made out in the grounds of the application to the Court. Nor in the applicant’s oral and written submissions. Nor is such an error otherwise discernible in the material before the Court Accordingly, the application should be dismissed. I will make such an order.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 28 May 2012
0
10
2