SZTGE v Minister for Immigration
[2014] FCCA 1458
•8 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTGE v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1458 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – Tribunal referring to the applicant as being from Fiji – no material error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Dranichnikov v Minister for Immigration (2003) 73 ALD 321 SZRBA v Minister for Immigration [2014] FCAFC 81 |
| Applicant: | SZTGE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2103 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Given Sparke Helmore |
ORDERS
The application filed on 9 September 2013 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2103 of 2013
| SZTGE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 14 August 2013 although the Tribunal purported to issue a corrigendum on 3 September 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China. The following statement of background facts relating to her protection visa claims and the decision of the Tribunal on them is derived from the Minister’s outline of legal submissions filed on 28 June 2014.
The applicant is a citizen of the People’s Republic of China who arrived on 29 June 2012[1].
[1] Court Book (CB) 50
On 26 August 2012 the applicant lodged an application for a protection (class XA) visa[2] claiming the fear harm in China because her husband was adversely treated by the Chinese authorities in connection with a dispute over money with a former work colleague. The applicant claimed that she would be unable to survive in China as she would be monitored by the authorities and would be unable to get a job or earn a living. She also claimed during her interview before the delegate that she had read part of a Falun Gong book but had never practised Falun Gong.
[2] CB 1-29
On 30 October 2012 a delegate of the Minister refused the visa application[3].
[3] CB 46-60
On 28 December 2012 the applicant applied to the Tribunal for review of the delegate’s decision and appointed an authorised recipient[4].
[4] CB 61-70
On 2 July 2013 the Tribunal invited the applicant to attend a hearing[5] which the applicant accepted[6]. On 13 August 2013, the applicant attended a hearing of the Tribunal at which she gave evidence and presented arguments with the assistance of a Mandarin interpreter[7] and submitted her passport[8].
[5] CB 79-81
[6] CB 82-83
[7] CB 85-87
[8] CB 88-95
On 14 August 2013 the Tribunal affirmed the delegate’s decision not to grant the visa[9]. On 3 September 2013, the Tribunal issued a corrigendum to the decision[10].
[9] CB 98-101
[10] CB 110-111
Tribunal decision
The applicant’s son, who is also in Australia, lodged a protection visa application independently of his mother. That application was heard and determined separately by the Tribunal after a delegate had refused to grant him the visa[11].
[11] CB 101 at [11]
On the basis of comprehensive adverse credibility findings, the Tribunal wholly rejected the applicant’s claims about the events that allegedly occurred in China[12]. The Tribunal found the applicant’s claim that she and her husband needed to borrow money because they were struggling to save for a home was undermined by her own evidence that she had travelled to Japan for a holiday in August 2010[13]. It also found that her claims were undermined by her own evidence that she had departed China on her own passport without facing any difficulty and that her husband was now living and working in Nankai[14].
[12] CB 103 at [21]
[13] CB 101 at [13]
[14] CB 102 at [16]
The Tribunal found further[15] that the applicant’s evidence in relation to the alleged money dispute was “vague and highly unconvincing” and that her evidence about her husband’s residence and employment and her own employment in China was inconsistent with the evidence given by her son in connection with his protection visa application[16].
[15] CB 101-102 at [14]-[15]
[16] CB 102-103 at [17]-[20]
While the Tribunal accepted that the applicant might have read parts of a Falun Gong text in the past, it was not satisfied on the evidence before it that this would result in her facing a real chance or risk of any future harm of any nature in connection with Falun Gong[17].
[17] CB 101 at [12]
For these reasons, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a real risk that she would suffer significant harm[18].
[18] CB 104 at [22]-[24]
These proceedings began with a show cause application filed on 9 September 2013. The applicant continues to rely upon that application. There are five grounds of review in it:
1. There were errors in para.8 and 9 of Decision Record. I am female and had no relationship with the place Fiji. These errors reflected that the Tribunal took no care about my case.
2. The Tribunal made unreasonable comment about my trip to Japan. At that time, my son contributed towards the expense and I needed a holiday. It was not a luxury holiday which is difficult to reconcile with my financial difficulties and objectives of buying a home, as the Tribunal commented.
3. The Tribunal unfairly ignored that y family was simple and naïve. It was the fact that we did not think too much regarding Mei Wu’s proposed scheme before giving her the equivalent of one year’s wages in April 2011. Plus, many people did the same thing at that time as the scheme was popular. The Tribunal ignored these facts and unfairly challenged my general credibility as a witness.
4. The Tribunal put no weight on the truth that my son came to Australia in January 2012 and may not be fully aware of my circumstances as I didn’t want to worry him. Thus, my son might not be able to provide evidence about my case. Furthermore, my son might have given incorrect information due to nerves. The Tribunal paid no attention on the aspect.
5. The Tribunal did not follow section 5 of the Act. My husband has been detained, beaten and monitored by the Chinese authorities. I face a real risk of serious penalty should I return to China. My family faces a real risk of being subjected to torture and inhuman treatment within the meaning of section 5 of the Act.
When the matter came before me for first court date directions on 1 October 2013, I dispensed with a show cause hearing and listed the matter for a final hearing today because of Ground 1, which I was satisfied raised an arguable case of jurisdictional error by the Tribunal.
I have before me as evidence the court book filed on 1 October 2013.
I declined to receive the applicant’s affidavit filed with her application as it did not bear on any issue in dispute between the parties and the Tribunal decision annexed to it is reproduced in the court book.
Only the Minister has prepared written submissions in accordance with the orders I made on 1 October 2013. The applicant is self-represented and was unable to articulate any submissions of substance bearing upon the legal issues. I sought to explain to her the issues that I would need to resolve, in particular relating to Ground 1. Although, the applicant is obviously at a disadvantage without legal representation, I have taken account of that disadvantage in dealing with the matter.
There is no substance in Grounds 2 to 5 in the application. Notwithstanding the language employed, those grounds are, as the Minister asserts in his submissions, an invitation for the Court to engage in merits review, which is impermissible[19].
[19] The reference to s.5 of the Migration Act 1958 (Cth) is to an interpretation provision of no apparent relevance
The only issue of substance arises in relation to Ground 1. At [8] of its reasons[20], the Tribunal referred to the applicant returning to Fiji or suffering significant harm in Fiji:
The Tribunal must assess whether: it is satisfied of the credibility and truth of relevant aspects of the applicant’s claims and evidence; on the evidence before it, it is satisfied that the applicant faces a well-founded fear, based on a real chance, of persecution involving serious harm for a Convention reason, if she returns to Fiji. If the Tribunal is not satisfied that he is owed Australia’s protection under the Refugees Convention, it must then consider whether he is owed Complementary Protection. That involves an assessment of whether there are substantial grounds for believing that she faces a real risk of significant harm in Fiji for any of the reasons claimed or arising on the evidence.
[20] CB 100
At two points, the Tribunal also referred to the applicant in that paragraph as “he” rather than “she”. Obviously, the references to Fiji were errors as the applicant is from China. She explained to me in her oral submissions that she does not even know where Fiji is. It is apparent to me that the error has come about probably because the Tribunal cut and pasted that paragraph of its reasons from an earlier decision.
A very similar issue was considered by Scarlett FM as his Honour then was in SZHMW v Minister for Immigration & Anor[21]. His Honour noted in that case that the erroneous country reference was an obvious typographical error or computer error which, while it pointed to a clear need for the Tribunal to employ a good proof reader, had no jurisdictional significance. His Honour reached the same view in the later decision of SZFUB v Minister for Immigration & Anor[22].
[21] [2006] FMCA 321 at [17] to [22]
[22] [2007] FMCA 2133 at [34]
The matter might have rested there were it not for the decision of the Full Federal Court yesterday in SZRBA v Minister for Immigration[23]. I provided copies of that decision to the applicant and the Minister’s solicitor and had the interpreter read it to the applicant. In that case, the Full Court dealt with circumstances in which an independent merits reviewer cut and pasted substantial parts of his earlier decisions into the decision at issue before the Court. The Full Court found at [21] that the process of cutting and pasting his own decisions on earlier but similar claims had caused the Reviewer accidentally to overlook a substantial submission made to him by the applicant’s representative in that case. Their Honours were satisfied the circumstances established a denial of procedural fairness of the kind described in Dranichnikov v Minister for Immigration[24].
[23] [2014] FCAFC 81
[24] (2003) 73 ALD 321
The Minister’s solicitor in her submissions sought to distinguish this case from SZRBA. I accept that there are important distinguishing features. First and importantly, [8] of the Tribunal’s reasons is an introductory paragraph identifying the issues before the Tribunal rather than the part of the Tribunal’s reasons dealing with the consideration of the applicant’s particular claims.
Secondly, there is nothing in this case to suggest that any relevant material was overlooked by the Tribunal. It is arguable that the Tribunal fell into error by incorrectly identifying the issue that the Tribunal had to resolve as whether the applicant would face serious or significant harm in Fiji. I accept, however, the Minister’s submission that in essence, the references to Fiji are no more than references to the applicant’s country of origin, whatever that might be. Indeed, there would have been nothing wrong in the Tribunal referring generically to the applicant’s country of origin in that paragraph rather than to a particular country.
These are, in my view, proper bases upon which this case can be distinguished from SZRBA. More generally, and as has been pointed out by the courts on several occasions, including in Minister for Immigration v SZQHH[25], there is nothing wrong in principle with a decision-maker employing a template for at least part of his or her decisions.
[25] (2012) 200 FCR 223
The Tribunal often employs a template as an appendix to its reasons in dealing with the relevant law (and it did so in this case). Some Tribunal members employ what are obviously template paragraphs in the introductory portions of their decisions. There is nothing wrong with that provided, of course, that the template paragraphs are accurate. If, for example, the template appendix became out-of-date because of changes to the law, an error of law might be established. More difficult questions arise where template paragraphs are employed in dealing with the claims of individual applicants. The use of such template paragraphs to deal with individual claims is a short cut. All short cuts in decision-making involve risk. The greater the short cut, the greater the risk. Plainly, in SZRBA, the taking of the risk led to error. That is not so in this case.
There is a further question concerning the Tribunal’s decision, which the Tribunal purported to correct by a corrigendum issued on 3 September 2013. The corrigendum purported to correct references at [8] to China rather than Fiji. There was no correction to the gender of the applicant as described in that paragraph. The corrigendum makes clear that the date of the decision was 14 August 2013.
Subject to the possibility of recall of a decision, a Tribunal decision is made when it is dated. Once the Tribunal makes a decision and it becomes beyond recall, the Tribunal becomes functus officio. When the Tribunal becomes functus officio, it is not possible for the Tribunal to alter its reasoning. If, therefore, it is possible for the Tribunal to correct errors through the issuing of a corrigendum, it could only be to correct obvious and immaterial errors.
It follows, therefore, in my view, that the Tribunal could not, through a corrigendum, avoid the consequences of template decision-making if it leads the Tribunal into error.
If there is no legal consequence of an error resulting from template decision-making, then a corrigendum would be unnecessary, except perhaps to indicate that the error had been recognised.
I conclude that the applicant has failed to demonstrate any jurisdictional error in the decision of the Tribunal. It is, therefore, a privative clause decision and the application must be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.
The applicant had some difficulty in understanding the principle of a costs award. I attempted to explain the consequence of a costs order to her.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 July 2014
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