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MIGRATION - Review of RRT decision - where delegate's request for applicant's comments on certain country information received no response - where applicant claims to have a well-founded fear of persecution for the Convention reason of political opinion - where inconsistencies in applicant's evidence impacted on her credibility - where applicant claims she was denied a fair hearing as result of interruptions and bias on part of Tribunal - where applicant failed to submit any evidence to substantiate this allegation - whether the Tribunal should have discussed its reasons for doubting the applicant's credibility with her - whether Tribunal ought to have considered "real chance" test - whether findings and reasons of Tribunal decision evidences jurisdictional error, a denial of natural justice or lack of procedural fairness.

SZATQ v Minister for Immigration [2004] FMCA 642 (24 September 2004)

SZATQ v Minister for Immigration [2004] FMCA 642 (24 September 2004)
Last Updated: 20 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATQ v MINISTER FOR IMMIGRATION
[2004] FMCA 642



MIGRATION - Review of RRT decision - where delegate's request for applicant's comments on certain country information received no response - where applicant claims to have a well-founded fear of persecution for the Convention reason of political opinion - where inconsistencies in applicant's evidence impacted on her credibility - where applicant claims she was denied a fair hearing as result of interruptions and bias on part of Tribunal - where applicant failed to submit any evidence to substantiate this allegation - whether the Tribunal should have discussed its reasons for doubting the applicant's credibility with her - whether Tribunal ought to have considered "real chance" test - whether findings and reasons of Tribunal decision evidences jurisdictional error, a denial of natural justice or lack of procedural fairness.



Federal Court Rules 1979

Federal Magistrates Court Rules

Ex parte Applicant S154/2002 (2003) 201 ALR 437

Ex parte H (2001) 179 ALR 425

MIMA v Jia (2001) 204 CLR 507

VFAB v MIMIA [2003] FCA 872

Ex parte Durairajasingham (2000) 168 ALR 407

MIEA v Guo (1997) 144 ALR 567 at 580

Randhawa v MILGEA (1994) 124 ALR 265

Singh v MIMA [2000] FCA 1063

Abebe v Commonwealth (1999) 197 CLR 510

Dranichnikov v MIMA (2003) 197 ALR 389

Applicant:
SZATQ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1075 of 2003



Delivered on:


24 September 2004



Delivered at:


Sydney



Hearing date:


1 September 2004



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Ms V Hartstein



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1075 of 2003

SZATQ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China. She arrived in Australia on 21 August 2001. On 14 September 2001 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 13 December 2001 a delegate of the Minister refused to grant a protection visa and on 9 January 2002 the applicant applied for review of that decision.

2. The applicant, who was at all times represented by a migration agent, was sent a letter from the Department [CB 36-37] advising her of certain information that would be taken into account in assessing whether or not she met the criteria for a protection visa and requesting her comments upon it. There was no evidence before the Tribunal that any such comments were received. The Tribunal itself held a hearing which the applicant attended on 10 February 2003. On 28 April 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 20 May 2003.

3. The applicant's claim to refugee status was based upon her having a well-founded fear of persecution for the convention reason of political opinion. The applicant was a resident of Qingdao where she had lived for at least ten years before she came to Australia. She is highly educated having two degrees and a diploma. She worked for a provincial department from 1984 to July 1995 and from then until August 2001 she worked for a very large state owned corporation. She was a member of the Communist Party. The applicant is married with one son.

4. The applicant's political activity arose out of her position as director of personnel of the state owned corporation. She claimed that in January 1999 she asked at a meeting that the government establish democratic and legal personnel administration systems and protect the basic human rights of dismissed workers. This activity was not well received by the organisation and at their request she withdraw the report and underwent self criticism. In July 1999 she gave a job to an associate to whom she passed internal official documents. Together they set up a small organisation for a democratic and multiparty system in China. The organisation was also active in seeking rights for workers made redundant. The organisation published a newsletter and she heard that the government had classified it as an anti-government political organisation.

5. The applicant gave evidence about the arrest of certain members of her organisation between July and August 2001 at which time she decided she must leave immediately. She had already been making arrangements to obtain a visa to visit Australia on her existing passport. She said that soon after she had left the country her husband was taken to the PSB for investigation because of her political background.

6. The Tribunal closely examined the applicant upon her claims and put to her the country information that had been provided by the delegate to which she had not previously responded. The Tribunal noted that it had been unable to locate any mention at all of any of the persons she claimed were involved in her group or of the group itself or of its magazine. It put to her that independent country information did not suggest that such a small local group formed by ordinary people rather than well known dissidents would be regarded as a threat to the authorities and targeted as claimed especially in the context of massive and repeated protests by the retrenched and the unemployed over a number of years. The Tribunal pointed out to her certain inconsistencies in her statement particularly in relation to a claim that her political activity was influenced by the arrest of a well known dissident Mr Yan which she associated with the decision to allow Beijing to host the 2008 Olympics. The Tribunal pointed out to her that the arrest of Yan had taken place some considerable time before that. The Tribunal also asked her to comment upon the fact that she would not have been able to leave China if she had been of such serious adverse interest to the authorities.

7. The Tribunal noted some matters contained in her statement which did not appear to have any connection whatsoever with her story as rehearsed to the delegate and the Tribunal. In particular there was a reference to Falun Gong. The Tribunal suggested that this might be because her statement had been taken, at least in part, from someone else's claim. The applicant put this down to a translation error.

8. The findings and reasons of the Tribunal are found between [CB 80] and [CB 82]. It stated:

"Although The Tribunal accepts that the Applicant most recently worked as the head of Personnel for a very large state owned enterprise in Qingdao, the Tribunal is not satisfied that the Applicant is a credible witness at least in relation to her key protection visa claims, because it finds her evidence about key matters inconsistent, or very general and lacking substance or not supported by independent country information."

The Tribunal then goes on over the next two pages to point out the inconsistencies or lack of substance that it found in the applicant's statement. At [CB 81-82] it said:

"The Tribunal also does not accept the Applicant's claims about the illegal group because the Applicant had no evidence at all to support any of her claims about it and the Tribunal could not find any mention of her group, its magazine or of "W" or any person she mentioned being arrested, in Qingdao at the times claimed. When asked why she hadn't any evidence sent to her after she left the country, the Applicant did not claim, as she had in written evidence, that documents were confiscated from her home after she left, but she referred only to her mother abandoning her."

9. When the matter came before me for hearing the applicant gave me details of seven errors that she said the Tribunal had made. Towards the end of the hearing she made a sustained complaint that she had never seen or received the green book. Although I doubted whether this was the case the respondent was unable to prove conclusively that she had and I therefore, after hearing the parties, agreed to adjourn the matter for a short period so that the applicant could have the green book and make any further representations she wished to make. The result was the filing on 6 September 2004 of an Amended Application for an Order for Review. I assume this constitutes the applicant's latest thinking on the subject.

10. The first ground of the amended application was that there was an error of law in the Tribunal's decision constituting a jurisdictional error. The applicant claims that the Tribunal failed to provide her any fair opportunity to provide complete oral evidence and clear explanations. She refers to being interrupted by the Tribunal six or seven times and states that the Tribunal never allowed her to give any complete evidence during the hearing. In Ex parte Applicant S154/2002 (2003) 201 ALR 437 Kirby J when discussing the object of the hearing rule said:

"The "hearing rule" applicable to administrative decision-making in Australia requires that the decision-maker, in a Tribunal such as this, must afford an applicant for administrative relief a fair opportunity to present relevant evidence and submissions in support of his or her case. It is not obligatory for the Tribunal member to expose for comment or submissions or rebutting evidence, every development in the decision-maker's thinking before, at or after the hearing. But where an issue is clearly important for the decision, it is impermissible to abbreviate the attempt of an applicant to give evidence or to curtail important evidence relevant to that issue."

Whilst the failure of a Tribunal to give an applicant a proper opportunity to be heard may constitute a jurisdictional error: Ex parte H (2001) 179 ALR 425 such an assertion must be proved: MIMA v Jia (2001) 204 CLR 507. At the very least the applicant would be required to put evidence on affidavit to which should be annexed either the tape recording or a transcript. The applicant has not provided this and the court is left with the reasons themselves. These give every indication that the applicant was given an opportunity to respond to matters brought up by the Tribunal. It is also worth noting the decision of Kenny J in VFAB v MIMIA [2003] FCA 872 where upon considering the tape and transcript of the Tribunal hearing her Honour commented at [81]:

"As noted earlier, if a member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal circumstances or otherwise, will also not amount to such error."

11. The applicant complains that the Tribunal failed to explain to her the reason why it thought she was not a credible witness. This is a finding by the Tribunal pursuant to its powers and responsibilities. It is not a matter that has to be taken up with an applicant. As the High Court said in Ex parte Durairajasingham (2000) 168 ALR 407 at [67]:

"a finding on credibility ... is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence."

12. The applicant complains that the Tribunal failed to consider her claims fairly and did not set out properly and fairly the real chance test. She claims that the Tribunal applied that test incorrectly because she was not allowed to complete her oral evidence. It seems to me that the applicant has misunderstood the purpose of the real chance test which is to deal with cases where the Tribunal is in some doubt. There is no evidence of any doubt in the Tribunal's mind here: MIEA v Guo (1997) 144 ALR 567 at 580; Ex parte Durairajasingham (2000) 168 ALR 407 at 420- 421. As for the assertion about completing her evidence this has already been dealt with.

13. The applicant then proceeds to deal in three paragraphs with an alleged failure by the Tribunal to give her complete information which it intended to use. Unfortunately, there is not sufficient particularity in this complaint but to the extent that it refers to a failure to allow the applicant to provide comment I do not think this is the case. But, in any event, the applicant has not established her claims to my satisfaction by evidence.

14. The second ground in the amended application is that there was procedural error in the Tribunal's decision constituting an absence of natural justice. The particulars include a failure by the Tribunal to demonstrate that it had sufficient knowledge about the actual situation in China. Here the applicant appears to be misunderstanding the task of the Tribunal. The Tribunal is there to consider her claims and to indicate whether or not as a result of the evidence which she produces it is satisfied as required by s.36 of the Migration Act that she is the person to whom Australia owes protection obligations. The applicant is not required to surmount any burden of proof but she is required to put forward her own case: Randhawa v MILGEA (1994) 124 ALR 265 at 278; Singh v MIMA [2000] FCA 1063 at [14]; Abebe v Commonwealth (1999) 197 CLR 510 at [187]; Dranichnikov v MIMA (2003) 197 ALR 389 at [78]. The applicant was aware of the Tribunal's views about the situation in China from the very thorough way in which it appeared to have discussed with her the claims which she made. The applicant or her adviser was quite capable of providing the Tribunal with further and contradictory information if they believed that was necessary, even after the hearing.

15. The applicant claims under this heading that the Tribunal failed to provide her with a fair chance to explain her claims or to provide complete oral evidence. This is the same matter upon which I have already commented that there is an absence of evidence. Finally, the applicant claims that the Tribunal had a bias towards her claim which she supports by the Tribunal having interrupted her claims during the hearing. Firstly, there is no evidence of this and secondly there are no particulars as required by Order 54 rule 2.2 Federal Court Rules 1979 without which I would not be prepared to consider such a claim.

16. The applicant has not convinced me that the Tribunal fell into jurisdictional error in the manner in which it came to its conclusions in her case. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 24 September 2004

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