SZTRE v Minister for Immigration

[2014] FCCA 2150

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2150

Catchwords:
MIGRATION – Application to review a decision of the Refugee Review Tribunal – alleged failure to afford the applicants procedural fairness – alleged breach of ss.424 and 424A – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91X, 424, 424A, 424AA, 425, 476

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575
SZQBN v Minister for Immigration and Border Protection [2014] FCA 686
BRGAD of 2009 v Minister for Immigration and Citizenship [2010] FCA 1053
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609

First Applicant: SZTRE

Second Applicant: SZTRF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3130 of 2013

Judgment of: Judge Nicholls

Hearing date: 5 August 2014

Date of Last Submission: 5 August 2014

Delivered at: Sydney

Delivered on: 5 August 2014

REPRESENTATION

Applicants: In person

Appearing for the Respondents: Ms S Burnett

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 16 December 2013 is dismissed.

2. The applicants pay the first respondent’s costs set in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3130 of 2013

SZTRE

First Applicant

SZTRF

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 16 December 2013. It seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 November 2013 which affirmed the decision of the Minister’s delegate not to grant protection visas to the applicants.

Background

1. In evidence before the Court is a bundle of relevant documents that the Minister has filed in these proceedings (“the Court Book” – “CB”). The following background can be ascertained from that material.

2. The first named applicant (“the applicant”) before the Court is the son of the second named applicant (“the second applicant”). Both are nationals of the People’s Republic of China (“China”) (CB 2 and CB 29). The applicant entered Australia on 3 May 2013 as the holder of a temporary student visa which is valid until 8 September 2016 (CB 121). The second applicant arrived in Australia on 1 January 2013 as the holder of a visitor visa which expired on 18 April 2013 (CB 121). It would appear that at some time the second applicant was taken into immigration detention by officials from the Minister’s department, and I note that she appears to have remained in detention.

3. The applicant applied for a protection visa on 11 June 2013 (CB 1 to CB 32). The second applicant was included in the application as a member of his family unit (CB 28 to CB 32). They received some assistance in the making of that application (CB 25).

4. The applicant’s claims to protection were initially set out in a written statement that accompanied the application for the visas (CB 33 to CB 36). In essence, the applicant sought protection in Australia because he “…had suffered persecution by the family planning authority in China” (CB 33.2).

5. The statement related that the applicant’s desire to have a son led to he and his wife breaching the family planning laws (CB 33). That is, they had two children and they were both girls. Their second daughter had no household registration because the local authorities required the payment of a fine (CB 33). Further, that his wife became pregnant for a third time. Family planning officials in China forced her to abort this pregnancy (CB 34). He feared that he would be compelled to undergo forced surgical sterilisation if he were to return to China (CB 34).

6. I note, relevantly, the second applicant was interviewed by a departmental “compliance officer” on 14 August 2013. The officer’s report of that interview is reproduced in the Court Book (CB 86 to CB 93). It appears that the second applicant had been located working in breach of a condition that attached to her visitor visa. She is reported as saying to the officer that she worked to earn money so that she could continue to live in Australia. I will return to that interview report later in light of the applicants’ ground.

The Delegate

1. The applicants were invited to attend an interview before the Minister’s delegate but did not respond to the delegate’s letter of invitation and failed to attend at the scheduled time (CB 123). The Minister’s delegate proceeded to consider the application on what had been submitted by the applicants. The delegate found a number of discrepancies in the information the applicant had provided to the Minister’s department (CB 125). The delegate found that the applicant had “misrepresented his true circumstances in his dealings with the Department” (CB 126). The application for the protection visas was refused because the delegate found the applicant not to be a genuine applicant for a protection visa (CB 126). The second applicant’s application was refused as a consequence (CB 129).

The Tribunal

1. The applicants applied for review of the delegate’s decision to the Tribunal on 13 September 2013 (CB 130 to CB 135). They submitted certain documents in support of that application (CB 155 and CB 165). They were invited to a hearing before the Tribunal by letter dated 23 September 2013.  The hearing was scheduled for 21 October 2013 (CB 148 to CB 154). The applicants attended and gave their evidence (CB 158).

2. The Tribunal understood the applicants’ claims to protection as they derived from the written application for the protection visa, the written statement made by the applicant and the evidence given by both applicants at the hearing (see [9] and footnote 2 at CB 177).

3. A number of additional elements to their claims emerged at the hearing with the Tribunal.  These were as follows:

   1)The second applicant was beaten by family planning officials in November 2012 when she told them the applicant could not pay the fine in relation to his second daughter ([12] at CB 177 and [21] at CB 178).

   2)Family planning officials continued to come to the applicant’s home after the abortion.  They made demands for the payment of the fine and continued to threaten the applicant with sterilisation ([21] – [22] at CB 178, and [28] at CB 179).

   3)The applicant’s father, brother, and his wife have all had to leave the family home because of these visits by the officials. I should note here, given one of the complaints made to the Court today, that the Tribunal records that claim in its decision record ([16] at CB 177).

   4)The officials threatened to confiscate the family home. The applicant said that in these circumstances he would not be able to pay the household registration fee for his second child ([17] at CB 178 and [44] at CB 181).

   5)The second applicant said she feared to return because the family planning officials would confiscate the family home and continue to trouble the family ([18] at CB 178).

4. By letter dated 22 October 2013, that is, the day after the hearing, the Tribunal wrote to the applicants (CB 160 to CB 162). This letter invited them to comment on, or respond to, certain information. This information was identified as follows:

   1)The omission of certain matters from the applicant’s initial written statement.

   2)Evidence given by the second applicant at the interview with the compliance officer in August 2013.  The Tribunal quoted, as it said, “verbatim” that part of the interview report which it said would be a part of the reason for affirming the delegate’s decision (CB 160 to CB 161).

   3)Evidence about family members ceasing to live in the family home.

   4)Consequences of relying on the information in question and finding both the applicant and the second applicant were not witnesses of truth.  This was put to explain the relevance of the information to the Tribunal’s decision.

5. The applicant responded in writing by letter, received by the Tribunal on 4 November 2013 (CB 163 to CB 164).

6. The Tribunal affirmed the decision of the delegate on 18 November 2013. In its decision record the Tribunal explained that it had a number of concerns about the credibility of the applicants ([20] at CB 178). It ultimately found that they were not witnesses of truth, and that the account of events that they had given, on which their protection claims were based, was false ([49] at CB 181).

7. The Tribunal gave reasons for this conclusion. These were, in summary, as follows:

   1)The applicant had omitted a number of significant events from his initial written statement. The Tribunal did not accept the applicant’s explanation for these omissions. Relevant to the ground of the application that has been put before the Court, this included his response to what the Tribunal described as the “s.424A” letter and his evidence at the hearing ([21] at CB 178 to [29] at CB 179).

   2)The inconsistency between the evidence given by the second applicant at the interview with the compliance officer and the applicants’ evidence at the hearing before the Tribunal. The Tribunal did not accept their explanations for this inconsistency, and did not believe their subsequent denial of what the second applicant was reported to have said to the compliance officer ([30] at CB 179 to [40] at CB 180).

   3)Inconsistent evidence between the initial written statement and the evidence of both of the applicants at the hearing as to who was living in the family home. The Tribunal noted that the applicants failed to provide an explanation for these inconsistencies ([48] at CB 181). 

8. The Tribunal did not believe the applicants’ factual account of past events, which formed the basis for their claimed fear if they were to return to China. The Tribunal found that there was no credible evidence that either the applicant or the second applicant were harmed by the Chinese authorities, or that the authorities wished to apprehend and harm them ([62] at CB 183). It also found that there was not any credible evidence as to why they left China ([61] at CB 183). In these circumstances, it was not satisfied that they were persons in respect of whom Australia had protection obligations, either under s.36(2)(a) or s.36(2)(aa) of the Act ([69] at CB 183).

Application Before the Court

1. The application before the Court contains one ground of review:

   “1. The Tribunal committed jurisdictional error in that it failed to comply with Section 424(2) or Section 424A(2A) of the Migration Act.

   Particulars

   (a) Failure to disclose to the applicants, in either way prescribed by Section 424(2) or Section 424A(2A) that it had quoted the record of the interview at the Villawood Detention Centre;

   (b) That record of Interview on the department file was quoted by the Tribunal was incorrect in terms of the applicant – [SZRTF’s] statement.”

   [Errors in the original.]

2. The ground identifies the statement with reference to the second applicant by using her name. I note, given the provisions of s.91X of the Act, that in any publication of this judgment that name should be substituted with the pseudonym that has been provided for the identification of the second applicant before the Court.

Before the Court

1. At the hearing today both applicants appeared in person. They were assisted by an interpreter in the Mandarin language. Ms S Burnett appeared for the Minister.

2. The applicants had previously filed an affidavit of the applicant sworn on 18 March 2014. The affidavit says:

   “1.    I am the applicant in these proceedings;

   2.  The evidence documents I have provided are true’” 

   [Error in the original.]

3. The affidavit then attaches a number of documents. The applicant told the Court today that he wanted the affidavit to be taken into evidence before the Court. The Minister objected to the Court reading the affidavit and the attachments into evidence. I uphold the Minister’s objection. I do so for the following reasons.

4. The documents are various identity documents of the applicants, statements of witnesses as to what was said to have happened to the applicants’ family, and photographs of what was said to be the applicant’s father in front of their, as it is described, “collapsed” home which had been “forcibly demolished”.

5. To the extent that the applicant asserts that the documents he attached to the affidavit are true, and asks the Court to consider those documents, then none of those documents are relevant to any fact in issue before this Court. Plainly, they go to the merits of the applicants’ claims before the Tribunal.

6. It is clear that none of these documents were before the Tribunal, and to the extent that the documents have been created after the date of the Tribunal’s decision they cannot assist in revealing jurisdictional error on the part of the Tribunal. Although she did not put it to the Court in any evidentiary context, the second applicant explained before the Court that their house had been demolished after the date of the Tribunal’s decision. 

7. In all, the affidavit and the material in the affidavit are not relevant, and the applicants have not explained how they are relevant to the sole ground of the application before the Court. During the hearing the Court made a number of attempts to explain the nature of judicial review of the Tribunal’s decision. That is, that they cannot seek review of the merits of their claims to protection from this Court.

8. However, this appeared to be, other than for one matter which I will deal with in a moment, the entirety of the applicants’ submissions and complaints that they made to the Court orally today. In short, the applicants have asked the Court, in effect, to intervene, and grant them protection visas. The Court has no power to do so. As I sought to explain to the applicants, by law the Court is not permitted to engage in any such merits review of their protection claims (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

9. As stated above, the Minister objected to the entirety of the affidavit.  I upheld that objection. Even if I had admitted the affidavit into evidence before the Court, nothing in that affidavit, or the annexures, can assist the applicants in revealing jurisdictional error on the part of the Tribunal.

10. The second applicant also complained before the Court that the hearing before the Tribunal was “too short” and that she and her son were not given the opportunity to fully explain their claims. The applicant indicated that he agreed with the second applicant’s complaint in this regard.

11. It is the case that the Tribunal in the circumstances, was obliged by law (s.425 of the Act) to invite applicants to a hearing and to provide a meaningful opportunity for the applicants to give their evidence and to explain their claims (Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188; Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553, Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575, and SZQBN v Minister for Immigration and Border Protection [2014] FCA 686).

12. A number of things can be said in relation to this complaint.  First, the applicants were given the opportunity before this Court to provide evidence by way of affidavit in support of any assertion of “legal mistake” on the part of the Tribunal. As I have said, the applicants took up that opportunity in the presentation of the affidavit to which I have already referred. However, there is nothing in that affidavit nor, indeed, any other affidavit from the applicants, to support, in any evidentiary context, the complaint that they have made orally to the Court today.

13. The only evidence in relation to this complaint, therefore, that is before the Court is the evidence that is contained in the Tribunal’s hearing record (see “RRT Hearing Record” at CB 158). That evidence reveals that the hearing before the Tribunal lasted for nearly two hours. That in itself is not determinative of the applicant’s complaint. It is, however, an indication that the hearing cannot be said to have been of some unusually short duration. What is of far greater importance is that there is no evidence before the Court that the Tribunal cut the hearing short, or deprived the applicants of the opportunity to give their evidence and explain their claims.

14. What can be said on the evidence before the Court is that the applicants were given the opportunity to explain, in particular, and relevantly, the inconsistencies in their evidence. It was these inconsistencies which formed the basis for the Tribunal’s conclusion which was adverse to them.

15. Further, as stated above, I note that after the hearing the Tribunal wrote to the applicants inviting them to comment on the evidence they had given at the hearing (CB 160 to CB 162). The applicant responded in writing to that invitation (CB 163 to CB 164). There is no complaint in that written response by the applicant that he was denied an opportunity, or that the second applicant was denied an opportunity, to further explain the inconsistencies that the Tribunal had specifically brought to their attention. Nor was there any complaint that they were otherwise denied an opportunity to fully present their claims and give their evidence. Nor is there anything else in evidence before the Court to show that the applicants otherwise complained to the Tribunal about the conduct of the hearing. In these circumstances, the complaint as expressed today does not reveal jurisdictional error in the Tribunal’s decision.

Consideration

1. The applicants’ ground before the Court, in essence, asserts that the Tribunal failed to comply with s.424(2) or s.424A(2A) of the Act. Relevantly, the terms of those sections of the Act are as follows:

   “424  Tribunal may seek information

   …

   (2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   …

   424A Information and invitation given in writing by Tribunal

   …

   (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.”

2. It must be said, and I say this with respect to the applicants, it is difficult to see how s.424(2) of the Act can assist them in the circumstances of this case. However, I accept what the applicants told the Court today that they have no knowledge or understanding of Australian law and that the ground of the application to the Court was drafted either by a friend, or a lawyer through the intervention of a friend.

3. The particulars to the ground provide some insight into the applicants’ complaint. That is, that the Tribunal did not disclose to them that it wanted to rely on part of the compliance officer’s report of the interview with the second applicant, and that, in any event, that part relied on by the Tribunal was not a true account of what the second applicant said at the compliance interview.

1. At stated above, the Tribunal quoted an extract from that report in its letter of 22 October 2013 to the applicants inviting their comment or response. That extract was as follows (CB 160):

   “When I was in China my son got married and gave birth to a daughter and is pregnant again. The authorities force my daughter-in-law to abort the baby and tried to stop them due to the incident we fought with the officials and the official was injury. The officials asked for compensation for the injuries and we escaped China.”

   [Errors in the original.]

2. Dealing, first, with s.424(2) of the Act. The applicants assert that the Tribunal fell into jurisdictional error because it failed to disclose to them, as prescribed by s.424(2) of the Act, that it had quoted the record of interview with the second applicant. It is difficult from that language to discern exactly what the applicants mean. At best, I understand this complaint to be that the Tribunal failed, pursuant to s.424(2) of the Act, to tell the applicants that it would rely on this quote in the making of its decision.

3. There are a number of difficulties for the applicants in this regard. Section 424(2) of the Act says nothing about disclosure to the applicants about any information, or any quote, or any other matter. Section 424(2) of the Act, being a part of s.424 of the Act, is concerned with one of the ways in which the Tribunal may get information, or seek information. If the complaint is that the Tribunal did not give them the opportunity to comment on this quote, then the evidence before the Court reveals that the Tribunal did that both in writing, and prior to that, orally at the hearing ([33] at CB 179 to [38] at CB 180).

4. In any event, as the Minister correctly submits, the Tribunal has a discretion to invite an applicant to provide information pursuant to s.424, including s.424(2), of the Act, but it is not obliged to do so (BRGAD of 2009 v Minister for Immigration and Citizenship [2010] FCA 1053). To the extent, therefore, that the ground relies on s.424(2) of the Act that cannot assist the applicants in revealing jurisdictional error on the part of the Tribunal.

5. The ground, similarly, asserts a failure by the Tribunal to comply with s.424A(2A) of the Act in relation to this quote from the interview report. Again, the applicants’ ground does not assist them in revealing jurisdictional error on the part of the Tribunal.

6. Section 424A(2A) of the Act provides that any obligation on the Tribunal which arises pursuant to s.424A(1) of the Act is extinguished where the Tribunal employs the facility available to it to give information under s.424AA of the Act (see SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”)).

7. In the current case, the extract from the record of the compliance interview, which the Tribunal considered would be a part of the reason for affirming the delegate’s decision was, indeed, caught by s.424A(1) of the Act. Such information does not fall within any of the exceptions to the obligation in s.424A(1) that are set out in s.424A(3) of the Act.

8. However, as is plain from the material before the Court, the Tribunal discharged its obligation pursuant to s.424A(1) of the Act by its letter of 22 October 2013 (see at CB 160 to CB 162). I agree with the Minister’s submissions that the Tribunal invited comment on, or response to, the information which it set out, “verbatim”, in its letter. I note that this is not a case where the Tribunal was required to give a copy of the entire interview report to the applicants because, plainly, it only relied on the extract which was the entirety of the information used adversely to the applicants. There is no evidence before the Court that the entire report was considered by the Tribunal as being a part of the reason for affirming the delegate’s decision. Further, the extract quoted derives reasoning from its own terms and is not dependent on the entirety of the interview report.

9. The Tribunal’s letter informed the applicants that the quote was relevant to the review and gave particulars as to why this was the case.  Further, the Tribunal squarely put to the applicants the inconsistency between this information and other parts of their evidence. In particular, that it could lead to a finding that they were not witnesses of truth. Further, it explained the consequences for them in the disposition of the review if it were to make such a finding. 

10. Although it should not be taken as determinative of this point, it is the case, as the Minister submits, that the applicant responded to the Tribunal’s invitation. That response by the applicant was directly responsive to the invitation, such that it can be said that the applicants understood what was being put against them.

11. For the sake of completeness, I agree with the Minister’s submissions that the Tribunal’s letter complied with all of the relevant statutory and regulatory requirements in the giving of this information by letter to the applicants ([26] – [29] of the Minister’s written submissions).

12. I also note, as was held by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609, that inconsistencies in themselves in the applicant’s evidence are not “information” for the purposes of s.424A(1) of the Act.

13. I note, further, that the Tribunal also sought to discharge its obligation pursuant to s.424A(1) of the Act orally at the hearing with the applicants. That is, previous to the sending of its letter, the Tribunal used the facility available to it under s.424AA to discharge the obligation under s.424A(1) of the Act (SZMCD).

14. As I said earlier, there is no evidence before the Court from the applicants to challenge the Tribunal’s account of what occurred at the hearing. In these circumstances, it is not available to the Court to otherwise speculate as to what may have occurred at that hearing. The Tribunal’s account reveals that it gave clear particulars of what the second applicant was reported as having relevantly said at the interview with the compliance officer. It explained the relevance of this information to the review, and the consequences for the applicants if the Tribunal were to rely on the information. Contrary to the applicants’ general complaint today, the evidence before the Court reveals that it provided the applicants with a meaningful opportunity to respond ([34] – [40] at CB 180).

15. I also note that there is no error in the Tribunal also seeking to discharge its obligation under s.424A(1) of the Act by sending the letter the day after the hearing.

16. Particular (b) to the ground of the application asserts that the part of the interview quoted by the Tribunal was, as it is said, “incorrect”. I understood, therefore, the assertion to be that the second applicant’s comments had been incorrectly reported, or that she had not said what she is reported to have said.

17. The complaint, in summary form, repeats the explanation the applicants gave to the Tribunal in relation to this matter of what the second applicant is reported to have told the compliance officer (CB 163). In its decision record the Tribunal noted that, in the evidence and submissions the applicants gave at the hearing, they denied that the second applicant made this comment as it is reported in the compliance officer’s report ([36] – [37] at CB 180).

18. The Tribunal noted that in the written response to the s.424A letter, the applicant stated that a departmental officer, who is not identified, had “checked” the record of interview and had told them that the second applicant did not make the comment as reported (CB 163.6 and

    
    

    [36] – [40] at CB 180). The Tribunal did not believe this claim and it gave reasons for this probative of the evidence and material before it. Its relevant findings in this regard were reasonably open to it to make on the evidence before it. Particular (b) seeks to challenge a finding made by the Tribunal in such a way that it, again, asks this Court to engage in impermissible merits review (Wu Shan Liang).

Conclusion

1. In all, there is no jurisdictional error in the Tribunal’s decision. The sole ground of the application does not reveal any jurisdictional error. Nor can I otherwise see any jurisdictional error in what the Tribunal has done. It is, therefore, appropriate that the application to the Court be dismissed. I will make an order accordingly.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  15 September 2014