SZRKJ and Anor v Minister for Immigration and Anor

[2012] FMCA 1056

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRKJ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1056

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – no jurisdictional error.

Migration Act 1958 (Cth), ss.36, 48B, 424A, 425

Abebe v Commonwealth of Australia (1999) 162 ALR 1
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Dranichnikov v Minister for Immigration (2003) 73 ALD 321
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1
SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: SZRKJ

Second Applicant: SZRKK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 879 of 2012

Judgment of: Driver FM

Hearing date: 15 November 2012

Delivered at: Sydney

Delivered on: 15 November 2012

REPRESENTATION

Counsel for the Applicant: Mr D Burwood, pro bono publico

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The Court directs that the name of the applicant is not to appear on the transcript of proceedings.

2. The application filed on 20 April 2012 is dismissed.

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $10,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 879 of 2012

SZRKJ

First Applicant

SZRKK

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (the Tribunal).  The decision is dated on its face 22 March 2012.  It was notified to the applicants and their registered migration agent on the same day.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.

2. There are two applicants, who I understand are a husband and wife.  The relevant protection claims were made by the first applicant[1].  The second applicant claimed as a member of his family.  The applicant claimed religious persecution in China.  The following statement of background facts is derived from the Minister’s written submissions filed on 9 November 2012.

   [1] References to the applicant in these reasons are references to the first applicant

3. The applicants are citizens of the People's Republic of China ('PRC').[2]  The first applicant entered Australia on 21 June 2005 as a holder of a student (subclass TU-571) visa.  A second visa expired on 11 December 2007 and the first applicant remained unlawfully in the Australian community.

   [2] Court Book (CB) 37-44

4. The applicants lodged an application for protection (Class XA) visas on 3 November 2011.[3]  They have a child (born in May 2011) who was not included in the protection visa application.

   [3] CB 1-50

5. In a document titled “Statement of Claims” provided with the protection visa application forms, the applicant claimed to fear persecution in the PRC on the basis that he had “insisted our own religious belief” and had been attacked by the Government.[4]

   [4] CB 47

6. The applicant was interviewed by the delegate of the Minister on 25 November 2011.[5]  By decision dated 14 December 2011, the delegate refused to grant the visas. 

   [5] CB 57

7. An application for review was received by the Tribunal on 6 January 2012.[6]  The applicants were represented in relation to the review by a registered migration agent.  Although the second applicant was not included in the application to the Tribunal, the agent subsequently confirmed that she was meant to be included and that this had been an oversight.[7] 

   [6] CB 89

   [7] CB 106 and 118

8. Both applicants appeared at a hearing before the Tribunal on 23 February 2012, together with their agent and a witness whose name was Ms Che.[8] The Tribunal heard separately from the applicant and the second applicant but did not take oral evidence from Ms Che.  The Tribunal's decision record indicates that it agreed to accept any written submissions from Ms Che[9].

   [8] CB 122

   [9] at [37] and [85]

9. By letter dated 2 March 2012, the Tribunal invited the applicants to comment on or respond to information it considered would be the reason or part of the reason for affirming the decision under review (“the s.424A letter).[10]  The applicants were asked to respond by 9 March 2012.

   [10] CB 128

10. On 8 March 2012 the Tribunal received a facsimile from the applicants' agent stating that the first applicant was suffering from medical conditions.[11] The letter requested an extension of time to respond to the s.424A letter for two weeks.[12]  The Tribunal ultimately advised the applicants' agent that it would not grant the extension without medical evidence, but that it would postpone making its decision under after close of business on 16 March 2012.[13]

    [11] CB 138

    [12] CB 139

    [13] CB 185

11. On 16 March 2012, the agent sent a facsimile to the Tribunal seeking a two week extension and providing copies of the applicant's medical records.[14]  By facsimile sent on the same date the Tribunal advised that it had considered the request for additional time and the evidence provided in support of that application, but had decided not to grant the extension.[15]

    [14] CB 140

    [15] CB 185

12. The Tribunal did not receive any further correspondence from the applicants or their agent before it proceeded to make its decision on 22 March 2012. 

The Tribunal's decision

1. By decision dated 22 March 2012 the Tribunal affirmed the decision to refuse to grant the applicants protection (class XA) visas. 

2. The Tribunal's decision was primarily based on its finding that the applicant was not a witness of truth[16]. The Tribunal found that the applicant had been dishonest about events in China and his Christian practice since arriving in Australia.  It found the applicant's evidence to be unreliable, frequently inconsistent, lacking in detail and vague and the second applicant's evidence to be vague and unsupportive of the applicant's claims.

   [16] at [98]

3. In reaching its decision, the Tribunal made the following findings:

   a)the applicant's evidence about his detention in China has many inconsistencies and is “particularly problematic”[17] and the Tribunal was not satisfied the applicant was detained in China because he was a member of a house church;

   b)the applicant's evidence about his Christian practice is inconsistent and unreliable, including the age at which he became a Christian[18] and the number of people attending his house church in China[19]’;

   c)the applicant's evidence to the delegate about his parents' religion was inconsistent with his evidence to the Tribunal;

   d)the applicant claimed to attend church in Lidcombe since 2006 although he lacked knowledge about this church, including the name of the reverend[20];

   e)the Tribunal found that the significant delay in making an application for a protection visa reflected the fact that the applicant did not hold a genuine fear of returning to China because he has practised Christianity in the past and has come to the attention of the authorities for that reason.

   [17] at [99]

   [18] at [102]

   [19] at [104]

   [20] at [106]

4. For the above reasons the Tribunal concluded that the applicant was not a witness of truth, and it concluded that the problematic nature of his evidence cast doubt on all of his claims.[21] Accordingly, the Tribunal found that the applicants did not satisfy the criteria for a protection visa set out in s.36 of the Migration Act 1958 (Cth) (the Migration Act).

   [21] CB 217, at [109]

5. These proceedings began with a show cause application filed on 20 April 2012.  There are three generally expressed grounds in that application:

   1. Jurisdictional Error.

   2. Denial of natural Justice.  I am not agree the decision which from the R.R.T.

   3. Failing to take into account very relevant facts of the matter.

   (errors in original)

6. As is indicated in the Minister’s submissions, the procedural history of this matter has reflected some practical difficulties.  At the first court date on 17 May 2012, the first applicant was observed to be “sedated and non-responsive”.  The second applicant did not appear.  In order to ascertain whether a litigation guardian was required, I ordered that the Minister put on evidence of the first applicant's mental and physical health.  The Minister filed the affidavit of Annick Wain affirmed 8 June 2012 in compliance with that order.

7. In light of the medical evidence attached to Ms Wain's affidavit, I declared that the first applicant required a litigation guardian at an interlocutory hearing on 14 June 2012.  The applicants were referred by the Court for legal assistance. 

8. Mr Burwood, of counsel, appeared for the applicants at a further directions hearing on 20 July 2012, at which I rescinded the declaration that the first applicant required a litigation guardian and set the matter down for final hearing on 15 November 2012 at 10.15am. 

9. The Court is grateful to Mr Burwood for agreeing to represent the applicants on a pro bono basis, which has overcome the difficulties experienced at the earlier interlocutory stage.

10. Mr Burwood made oral submissions directed to his inquiries concerning whether any procedural unfairness might be indicated by the way in which the Tribunal dealt with a request for an extension of time to comment on adverse information.  The relevant evidence is contained in an amended court book filed on 2 July 2012, which I received.

11. The court book discloses at page 128 that the Tribunal, by letter dated 2 March 2012, invited the applicants to comment on information the Tribunal regarded as potentially adverse concerning the first applicant’s evidence about his parents’ religion, his religious practice in China, his detention in China, his knowledge of Christianity and related matters.  The Tribunal was concerned about a number of inconsistencies which caused the Tribunal to believe that the first applicant might not have been honest in his evidence and that the second applicant might have manufactured certain evidence.

12. The court book also discloses that the applicants’ migration agent sought an extension of time to respond to the invitation to comment by facsimile.  In support of that request, some 40 pages of medical information was forwarded to the Tribunal for consideration.  The Tribunal responded by letter dated 16 March 2012 that the request for an extension of time had been considered but rejected.  The Tribunal details its consideration of that issue at [89] of its reasons[22]:

    On 16 March 2012 the applicants’ representative wrote to the Tribunal seeking a two week extension and providing copies of the applicant’s medical records from the detention centre.  The Tribunal considered the medical evidence provided which did not include a medical certificate indicating the applicant’s medical conditions prevented him responding to the invitation by the due date.  It noted the evidence recorded that the applicant had on 24 February 2012 undergone pathology and medical tests for stomach pains and the results were recorded as normal.  He also underwent an abdominal ultrasound and examination on 9 March 2012 for stomach pains and the result was normal.  He had complained in November 2011 of skin irritation around a wound site from an injury suffered in September 2011 and after examination the wound was assessed as healed and not infected.  He also complained of itching, dizziness and headache in November 2011, a rash January 2012 and stomach pain, sweating and dizziness at various times in February 2012, at which times he was examined and no abnormalities were detected.  The Tribunal carefully considered this medical evidence however it decided, on the basis of the medical evidence, to decline the request, as it did not appear that the applicant had suffered a medical condition or conditions that prevented the applicants responding to the invitation by its due date.  The Tribunal wrote to the applicants on 16 March 2012 informing them that it had considered their request and the medical information provided but the request for an extension of time had been declined and they would need to provide their response by COB 16 March 2012.

    [22] CB 213

13. Mr Burwood’s inquiries indicate that the applicant faxed to his migration agent certain information at around 20.41 on 16 March 2012, which he evidently intended his agent would translate and forward to the Tribunal in response to the invitation to comment.  It does not appear that anything reached the Tribunal prior to it making its decision on 22 March 2012.  16 March 2012 was a Friday, and it appears highly likely that the agent would not have seen that information until the following Monday.

14. There is no indication of any fraud on the part of the agent, and, indeed, in the circumstances explained to me by counsel, it would be difficult to conclude that there was even any negligence on the part of the agent.  It is simply unfortunate that the applicant left it until late on the day on 16 March before sending a facsimile to his agent.  In my view, the circumstances do not support an argument of any procedural unfairness on the part of the Tribunal in dealing with its invitation to comment and the request for more time to comment.

15. The Minister’s submissions otherwise deal comprehensively with the grounds of review advanced by the applicants.  I agree with those submissions. 

Ground 1

1. The first ground of the application to the Court, which is wholly unparticularised, merely states “jurisdictional error”.  This ground is so broad and undefined that it cannot succeed without particularisation or explanation.

2. To the extent that this ground might be understood to express general dissatisfaction with the Tribunal's decision, it does not disclose any arguable jurisdictional error. It is well established that it is not the role of the Court to engage in merits review of the Tribunal's factual findings[23]. 

   [23] Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291

Ground 2

1. Ground 2 alleges that the Tribunal denied the applicants natural justice and states that the applicants do not agree with the Tribunal's decision. The application does not particularise the circumstances which are said to have given rise to any breach.

2. Section 422B of the Migration Act provides that Division 4 of Part 7 is an exhaustive statement of the natural justice hearing rule, in relation to the matters it deals with. The Minister submits that the Court should not be satisfied that the Tribunal committed any breach of the provisions in that division. I agree.

3. In particular, the Tribunal complied with the obligations that arose from ss.425 and 424A of the Migration Act. In SZBEL v Minister for Immigration[24] the High Court found that the obligation under s.425 requires that the applicant be invited to present evidence and arguments in relation to the issues arising in relation to the decision under review. I am satisfied that the applicants were not denied that opportunity in the present case. The Tribunal's account of what transpired at the hearing, as contained in its decision record, indicates that the applicant provided oral evidence of his claims and responded to questions from the member.[25]

   [24] (2006) 228 CLR 152

   [25] [36]-[85]

4. The Tribunal sent a letter dated 2 March 2012, inviting the applicants to respond to matters which it considered would be the reason, or part of the reason for affirming the decision under review, in purported compliance with s.424A of the Migration Act. These matters were put to the applicants in the letter related to inconsistencies in the first applicant's evidence to the delegate and his evidence to the Tribunal regarding his parents' religion, his age when he became a Christian, his house church in China, his detention in China, his knowledge of the Lidcombe church, and his knowledge of Easter and the Ascension. The letter also contained information relating to the second applicant's evidence about meeting the applicant and the applicant's Christian practice.

5. To the extent that any obligations arose pursuant to s.424A of the Migration Act, those obligations were met, and accordingly no breach of that section could be found in the circumstances of this case.

6. To the extent that the second ground of the application to the Court expresses the applicants' disagreement with the Tribunal's decision, no arguable jurisdictional error is disclosed. It is well established that the Tribunal is required to provide fairness in the procedures it employs in accordance with the applicable statutory scheme, but procedural fairness requires a “fair hearing not a fair outcome”.[26]

   [26] see SZBEL v Minister for Immigration (2006) 228 CLR 152 at [25], and Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J

Ground 3

1. The third ground of review asserts that the Tribunal failed “to take into account very relevant facts of the matter.”  If construed generously, this assertion might be understood as an allegation that the Tribunal failed to consider an integer of the applicant's claims.  I accept that a failure to consider an integer of an applicant’s claims can constitute error in certain circumstances.[27]

   [27] see for example NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

2. However, it is not apparent that any such error was made, having regard to the evidence presently available to the Court. The applicant's claims for protection centred on his religion as a Christian and the Tribunal outlines the subsidiary claims made by the applicant orally and in writing in its decision record in detail at [94]-[96]. It comprehensively rejected the totality of the applicant's claims at [109].

3. Accordingly, I am not satisfied that the Tribunal failed to consider “a substantial, clearly articulated argument relying on established facts”[28]. The third ground of the application fails.

   [28] see Dranichnikov v Minister for Immigration (2003) 73 ALD 321 at [24] per Gummow and Callinan JJ

4. The applicants have failed to demonstrate jurisdictional error by the Tribunal in relation to its decision.  That decision is, accordingly, a privative clause decision, and the application must be dismissed.

5. I note that the Tribunal’s decision was made two days before the commencement of amendments to the Migration Act to introduce a complementary criterion to protection visas. There is, at present, uncertainty whether applicants in the position of these applicants have an opportunity to make a second protection visa application limited to complementary protection considerations without the consent of the Minister pursuant to s.48B of the Migration Act. That issue is beyond the scope of these proceedings.

6. I will order that the application filed on 20 April 2012 be dismissed. 

7. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $10,000.  That claim is supported by the affidavit of Laura Frances Weston made on 15 November 2012.  The applicants did not wish to be heard on costs.  Having regard to the affidavit, I am satisfied that costs of not less than $10,000 have been reasonably and properly incurred on behalf of the Minister when considered on a party and party basis.  I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $10,000.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  20 November 2012