SZRQW v Minister for Immigration
[2012] FMCA 1090
•20 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRQW v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1090 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 424A, 424AA, 474, Pt.8 |
| SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 |
| Applicant: | SZRQW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1594 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 November 2012 |
| Date of Last Submission: | 20 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2012 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter in the Mandarin language. |
| Counsel for the Respondents: | David Hughes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The proceeding before this Court, commenced by way of application filed on 23 July 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $5,970.
NOTE A: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
NOTE B: The bundle of relevant documents identified as ‘Court Book’ and filed on 24 August 2012 was tendered by the first respondent and marked Exhibit 1R.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1594 of 2012
| SZRQW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(EX TEMPORE)
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 June 2012 and handed down on 19 June 2012.
The applicant claims to be a citizen of the People’s Republic of China (“China”).
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 11 September 2011 having departed legally from China on a passport issued in his own name and a student visa issued on 27 April 2010.
On 6 March 2012, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 17 April 2012, the Delegate refused the applicant’s application for a protection visa.
On 20 April 2012, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 18 June 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 July 2012, 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, is 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Pursuant to s.91R(1) of the Act, a Convention related reason must be the essential and significant reason for the persecution, must involve serious harm to the person and involve systematic and discriminatory conduct. Section 91R(2) of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of his protection visa application in which he stated as follows:
a)That his father had been a successful businessman in China.
b)In April 2011, at which time the applicant was studying in Australia, the applicant’s father telephoned him and told him that since January 2011 he had been approached a number of times by a man with a ‘huge influence” who was “infamous for being a thug” who wanted to use his father’s name to enter into business.
c)In May 2011, this man used the applicant’s father’s name to obtain a loan of RMB 4,500,000 from a bank to invest in a business.
d)Despite this business being in the applicant’s father’s name, the applicant’s father was not allowed any say.
e)In October 2011, the applicant’s father looked into the business accounts and saw that it was making a huge loss and had a lot of debt.
f)In December 2011, after unsuccessfully attempting to approach the man, the applicant’s father wrote a letter of complaint to the district ombudsman in which he stated that the man had used falsified documents to obtain the loan, had a ‘relationship with the gang members in the area” and used government resources for his own benefit.
g)On 25 December 2011, the applicant received a telephone call from his brother who told him that their parents had been detained in the district detention centre.
h)When the applicant’s brother returned from Australia to their family home in China, he saw that the police had put up a notice stating that their house was under investigation and no one was to enter.
i)When the applicant’s brother visited their parents in the detention centre, their father told him to back to Australia immediately because the man had told him that if they did not plead guilty to falsified charges of bribery and embezzlement, he would harm the applicant and the applicant’s brother.
j)The applicant’s brother also heard rumours that the local gang had been asking about him.
k)If returned to China, the applicant fears that he will be arrested and detained by authorities under the influence of the man just like what has happened to his parents.
The Delegate’s decision
On 5 April 2012, the applicant attended an interview with the Delegate.
On 17 April 2012, 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 Tribunal’s review and decision
On 20 April 2012, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The applicant provided further documents in support of his review application.
On 3 May 2012, the Tribunal wrote to the applicant informing him 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 31 May 2012 to give oral evidence and present arguments.
On 31 May 2012, the applicant attended the Tribunal hearing and gave evidence.
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 decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“8. On 18 June 2012, the Tribunal decided to affirm the Delegate’s decision (CB 179). The Tribunal’s findings and reasons are set out at CB 191 to 195. The Tribunal found that the applicant’s claims were fabricated, and that the applicant was not a witness of truth (CB 194 [79]). The Tribunal’s reasons for that finding were as follows.
9. First, the applicant wrote to the Minister in a letter dated 17 January 2012 stating that his parents were now in a position to fund his studies, and seeking the Minister’s intervention to obtain a student visa (CB176). That letter contradicted the applicant’s claims that his parents were in detention. The applicant told the Tribunal that the information he had written in the letter was false. The Tribunal was concerned that the applicant was prepared to make a false statement to the Minister. Further, in explaining why he did so, the applicant gave evidence that further conflicted with his earlier claims (CB 192 [75], first bullet point).
10. Secondly, the applicant was unable to provide basic information about his parents’ circumstances and dealings. The Tribunal found that his evidence was vague, selective and contained anomalies that the applicant was unable to explain, giving the impression that the incidents he referred to were not based on truth (CB 193 [75], second bullet point).
11. Thirdly, the Tribunal found unlikely the applicant’s claim that thugs in China would be making threats against the applicant and his brother when they were not present in China (CB 194 [75], third bullet point).
12. By reason of the finding that the applicant was not a witness of truth, the Tribunal did not place any weight on the documents and photographs that the applicant had provided in support of his application. In this regard, the Tribunal also relied on country information about the prevalence of document fraud in China, which had been put to the applicant (CB 194 [78]).
13. The Tribunal gave little weight to the brother’s evidence. The brother had an interest in supporting the applicant’s case because the brother had also made a claim for protection. The Tribunal found the brother’s evidence did not outweigh the Tribunal’s significant concerns about the applicant’s truthfulness (CB 194 [76]).
14. In those circumstances, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a convention reason (CB 195 [83]). For the same reason, the Tribunal also found that the applicant was not entitled to complementary protection (CB 195 [85]).”
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 23 August 2012, 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 he 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 his own language.
At the commencement of the hearing, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
The applicant confirmed that he relied on the grounds contained in an application filed on 23 July 2012 as follows:
“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.”
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.
Ground 1 – “Jurisdictional error”
Ground 1 was not support by particulars, evidence or written submissions.
I asked the applicant what was the jurisdictional error made by the Tribunal. The applicant said that the Tribunal’s decision record was not correct insofar as it stated that the applicant said that his brother was also an applicant for a protection visa; and, that the applicant’s brother told the Tribunal that he has applied for protection.
I explained to the applicant that there was no evidence before the Court to support those assertions and that the applicant had been given every opportunity to file and serve evidence and submissions in support of his claims. He also had the benefit of participating in the Court’s legal advice scheme.
The applicant then sought an adjournment in order to provide a copy of a transcript of the Tribunal hearing (which he told the Court which he had not yet prepared) and, otherwise, a recording of the Tribunal hearing.
The application was opposed by counsel for the first respondent, Mr Hughes.
The applicant then withdrew his request for an adjournment.
The applicant then sought leave to give sworn oral evidence about his assertions. That leave was opposed by counsel for the first respondent on the basis that the first respondent was not in a position to meet any evidence given by the applicant to that effect with other evidence. Having regard to the opportunities that the applicant has had to file and serve evidence and to identify such a complaint about the Tribunal’s decision record, leave was refused.
Otherwise, the applicant had nothing further to say in support of ground 1.
Accordingly, ground 1 is rejected.
Ground 2 – “Denial of natural justice. I am not agree the decision which from the R.R.T.”
Ground 2 was not supported by particulars, evidence or written submissions.
I asked the applicant in what way was he denied natural justice by the Tribunal. The applicant responded by asking what does natural justice mean and told the Court that his friend wrote his grounds. The applicant said that he had nothing further to say in support of ground 2.
In compliance with s.425 of the Act, the applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The applicant attended the hearing. In its decision record, the Tribunal summarised the applicant’s claims and the applicant’s interview with the Delegate on 5 April 2012. The Tribunal summarised the Delegate’s decision as follows:
“36. The delegate found that the applicant was not eligible for refugee protection as his claims did not relate to one or more of the Convention grounds, and there was no credible evidence that the PRC authorities had an adverse interest in him or would fail to protect him from any harm from third parties. The delegate rejected the applicant’s claims for complementary protection on credibility grounds.”
The Tribunal noted a pre-hearing submission received by it from the applicant on 28 May 2012 which also addressed the issue of complementary protection. The Tribunal also took evidence from the applicant’s brother.
At the Tribunal hearing on 31 May 2012, the Tribunal explored the applicant’s evidence with him and put to him matters of concern that it had arising from his evidence.
Further, the Tribunal put to the applicant information in a letter from the applicant, dated 17 January 2012, to the Minister for Immigration and Citizenship which contained information inconsistent with the applicant’s evidence to the Tribunal. The Tribunal stated in its decision record that it put this information to the applicant pursuant to s.424AA of the Act. The Tribunal stated as follows:
“63. The Tribunal put the information from the applicant’s Ministerial Intervention letter of 17 January 2012 to him, pursuant to the procedure in s.424AA of the Act. It explained the relevance and the consequences of the information for the review. This included that the Tribunal might infer that the applicant’s parents were not in detention; that this and other protection claims were not accurate; and that he was not a credible witness. It alerted the applicant that it might draw broader adverse inferences if he were to claim that he had provided the Minister with false information about having spoken with his parents recently, and received financial assurance from them. After the Tribunal advised the applicant of his options for commenting or responding to the information, he requested additional time to do so, and asked to do so in writing. The Tribunal agreed to receive his written comments/responses by COB 7 June 2012.”
The Tribunal invited the applicant to respond to the information and acceded to the applicant’s request for additional time to do so. On 7 June 2012, the applicant’s migration agent responded to the information given to the applicant pursuant to s.424AA of the Act. The Tribunal considered the applicant’s response and summarised it in its decision record.
There is nothing in the Tribunal’s decision record to indicate that the Tribunal had not fully complied with the requirements of s.424AA of the Act and, as stated above, the applicant did not provide a transcript or recording of the Tribunal hearing to prove otherwise (see SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at 19 per McKerracher J; and SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38] per Rares J). In the circumstances, I am satisfied that the information about the applicant’s letter to the Minister was given to the applicant in accordance with s.424AA of the Act.
Ultimately, the Tribunal rejected comprehensively the applicant’s claims, finding that they had been fabricated and that he was not a witness of truth. The Tribunal’s adverse credibility findings arose primarily from the applicant’s own evidence and the inconsistencies and concerns expressed by the Tribunal about that evidence. The Tribunal stated that it “has significant concerns about the entirety of the applicant’s claims and evidence, and his credibility”.
The Tribunal considered the applicant’s documents. However, it found that given its “extensive concerns” about the applicant’s credibility and country information relating to document fraud in China, the documents did not outweigh the Tribunal’s significant concerns about the applicant’s claims.
Further, there was no other information that enlivened any other obligation under s.424A of the Act. The Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence are not information for the purposes of s.424A of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).
The Tribunal also considered whether the applicant might meet the alternative criteria for complementary protection and considered the applicant’s pre-hearing submission, dated 28 May 2012, addressing this issue. However, having found the applicant’s claims to be untrue, the Tribunal was not satisfied that there was any basis for finding that there are substantial grounds to believe that as a necessary and foreseeable consequence of the applicant’s removal from Australia to China the applicant would be at risk of harm in terms of s.36(2)(aa) of the Act.
The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
To the extent that ground 2 asserts that the applicant does not agree with the decision of the Tribunal, such a complaint invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
As stated above, no denial of natural justice was particularised by the applicant and none is apparent on the face of the Tribunal’s decision record.
Accordingly, ground 2 is not made out.
Ground 3 – “Failing to take in account very relevant facts of the matter”
Ground 3 was also not supported by particulars, evidence or written submissions.
I asked the applicant what were the “very relevant facts” that the Tribunal had failed to take into account. Without any further elaboration, the applicant responded that it was his letter to the Minister and I understood that to be a reference to the applicant’s letter, dated 17 January 2012, which the Tribunal found to contain information inconsistent with the applicant’s evidence. As stated above, the information in that letter was put to the applicant in accordance with s.424AA of the Act and the applicant’s migration agent’s written response was considered. As stated above, the Tribunal’s findings and conclusions were open to it on the evidence and material before it.
No other relevant fact that the Tribunal failed to take into account was identified by the applicant and none is apparent on the face of the Tribunal’s decision record.
Accordingly, ground 3 is not made out.
Conclusion
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; took evidence from the applicant’s brother; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it. 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 sixty-one (61) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 20 November 2012
8
2