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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.

SZEBX v Minister for Immigration [2004] FMCA 920 (6 December 2004)

SZEBX v Minister for Immigration [2004] FMCA 920 (6 December 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEBX v MINISTER FOR IMMIGRATION
[2004] FMCA 920




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.




Migration Act 1958 (Cth), ss.424, 424A, 474

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992

WADU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1252

Minister for Immigration & Multicultural Affairs v Applicant S (2002) 124 FCR 256

Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25

Abebe v Commonwealth of Australia [1999] HCA 14

Muin v Refugee Review Tribunal (2002) 76 ALJR 966

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Minister for Immigration & Multicultural Affairs v NAMW [2004] FCAFC 264

O'Toole v Charles David Pty Ltd (1991) 171 CLR 232

Dan v Commissioner of Taxation (Cth) [No. 2] [2000] FCA 752

Diahatsu Australia Pty Ltd v Commissioner of Taxation [2001] FCA 588

WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16

SBAP v Refugee Review Tribunal [2002] FCA 590

Kordan Pty Ltd v Commissioner of Taxation [2000] FCA 1807

Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507

Ex parte H (2001) 179 ALR 425

VFAB v Minister for Immigration [2003] FCA 872

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547

Applicant:
SZEBX




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG2389 of 2004




Delivered on:


6 December 2004




Delivered at:


Sydney




Hearing date:


29 November 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter.

Counsel for the Respondent:


Miss R Francois




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in an amount of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG2389 of 2004

SZEBX



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 2 June 2004 and handed down on 28 June 2004, affirming a decision of a delegate of the respondent ("the delegate&q;
uot;) made on 10 March 2004 to refuse to grant the applicant a protection visa.

2. The applicant, who claims to be a citizen of the People's Republic of China, arrived in Australia on 24 February 2004. On 5 March 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Act"). On 10 March 2004 the delegate refused to grant a protection visa and on 13 April 2004 the applicant applied for a review of that decision.

Background

3. The applicant claimed he was born in the People's Republic of China on 1 August 1971 and is ethnically Chinese. He claimed that after finishing his schooling he helped his parents run a small grocery shop and took over responsibility of the shop in 1996. The applicant claimed that the local government officials tried to collect money from him for various "excuses" and in May 2003 they informed him that, as a self employed businessman, he "should make some donation to sponsor construction of the new official building for the People's Government of Nanjiao, Kaifeng City".

4. While having paid donations in the past, the applicant was not able to do so on this occasion because of the effects of SARS epidemic on his business. The applicant claimed that in discussion with other self employed businessmen in his area most of them "were in the same boat" and they united together to ask for a waiver of the donation, but the local government officials refused their request and insisted they "pay the required rate based on the turnover from the previous financial year or they would be severely punished". Most of the other businessmen complied, but the applicant and three others did not because they did not have the money and "could not tolerate long term unfair treatment against our self employed businessmen"
;. They tried to persuade others not to pay the donation. The group wrote a letter to the authorities appealing its decision which was successful and this made the group very excited because it was the first time they had achieved successful negotiation with the authorities. The success prompted the applicant to &
quot;organise a chamber to struggle for our basic human rights" (Court Book pp.67-68) ("CB"). However, their application was unexpectedly refused. Although they decided to continue the struggle to establish the chamber this ultimately led to a dispute with the PSB and then detention and punishment.

The Tribunal's findings and reasons

5. The applicant filed an application for review with the Tribunal on 13 April 2004. The Tribunal wrote to the applicant inviting him to attend a hearing which the applicant attended on 13 May 2004. At the hearing the applicant had detailed notes written in Chinese which were translated into English.

6. The Tribunal did not accept the applicant's central claims and found that he was not a credible witness. In particular, the Tribunal considered the applicant made a number of vague and inconsistent claims during the hearing. The applicant had stated he came to Australia on the basis of being a refugee but later said he did not know until he was in Australia that he could seek protection (CB p.74.8). The applicant also claimed that he had to obtain his release from detention by means of a bribe and that he had had to give "donations" to the Public Security Bureau ("PSB") but sometimes he was too busy as a result of his father's ill health and he would then take the PSB out to dinner to avoid punishment. The Tribunal did not accept that a person who had been tortured in detention in the manner described at the hearing would not report to the PSB as they were "too busy" (CB p.75).

7. The Tribunal did not accept the applicant's claims that he was a wanted political dissident given the independent country information that the PSB conducted exit checks and no wanted dissidents would be able to leave China (CB p.76.5). The applicant was unable to describe, except in very general terms, what was written in the "propaganda material" he distributed (CB p.77.5). The Tribunal did not accept the applicant's claim at the hearing that his wife had been sterilised because of his activities, given its findings above (CB p.79.5). The Tribunal also made an alternative finding that the applicant could relocate within China (CB p.78.6).

Application for review of the Tribunal's decision

8. On 28 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. On 1 October 2004 the applicant filed an amended application setting out the following grounds:

* There was an error of law in the Tribunal's decision constituting a jurisdictional error


Particulars
- The Tribunal did not comply with its obligations under s424 of the Migration Act 1958 ("the Act"). The Tribunal never ever intended to seek any additional information.

- The Tribunal did not comply with its obligations under s424A of the Act. They Tribunal never give me the information, such as his opinions regarding to my creditability, which has been used later on in its decision actually as the sole reason, for affirming the decision that is under review; and

- The Tribunal failed to ensure, as far as is reasonably practicable, that I have fully understood why it is relevant to the review; and

- The Tribunal has definitely never invited me to comment on it before or during or after the hearing arranged by the Tribunal; and

- The Tribunal has never ever given the information and invitation for comment by one f the methods specified in section 441A of the Act.

* There was procedural error in the Tribunal's decision constituting an absence of natural justice.


Particulars
- The Tribunal failed to carefully consider all of my claims, fairly and independently. The Tribunal is of unfair bias while considering my claims. Particularly, the Tribunal has, inevitably, owing to the unfair bias, intended to mislead me during the hearing; and the Tribunal has, apparently, tried to restrict my answers, during the hearing, to the area in which the Tribunal could find a reason to refuse my application

- It is owing to the reason mentioned in above that the Tribunal failed to provide me any fair opportunities, during the hearing, to explain my claims or to provide complete oral evidences in support of my application; and I have, during the hearing, many times been interrupted by the Tribunal.

* The Tribunal failed to carefully and fairly consider the applicant's claims based on procedures and criteria prescribed in Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (`UNHCR Handbook').

- I have been guided by Paragraph 190, Part II, UNHCR Handbook that a qualified examiner should have necessary knowledge and experience, and an understanding of an applicant's particular difficulties and needs. Especially, an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. The Tribunal failed to demonstrate its necessary knowledge and experience and such an understanding.

- I have been guided by Paragraph 196, Part II, UNHCR Handbook, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. It may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Also, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The Tribunal failed to use all the means at is disposal to produce the necessary evidence in support of the application. Also, the Tribunal failed to demonstrate that there are good reasons to the contrary.

- I have been guided by Paragraph 42, Part I, UNHCR Handbook, the applicant's statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation. The Tribunal failed to consider my statements in the context of the relevant background situation. Especially, the Tribunal failed to demonstrate its sound knowledge of conditions in the applicant's country of origin.

The law

9. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

10. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

11. The applicant appeared self represented with the aid of an interpreter. The applicant attended a directions hearing on 23 August 2004 where he signed Consent Orders agreeing to file and serve written submissions on or before five working days prior to the hearing date. No submissions were received. When the applicant was invited to make oral submissions before the Court he indicated that the interpreter at the Tribunal hearing was from Southern China and because of a problem with dialect the applicant claimed he was unable to understand what was taking place during the hearing. This issue was not raised in his pleadings in the amended application. The applicant then proceeded to repeat the issues raised in each ground of the amended application.

12. Miss Francois of Counsel appearing for the respondent filed written submissions prior to the hearing. In respect of the new ground concerning the alleged problem with the interpreter at the Tribunal hearing, there was no reference within the Tribunal decision indicating there was any problem with interpretation raised by the applicant nor had the applicant submitted any evidence in the form of a hearing recording and transcript with affidavit supporting the claim there was a problem with the interpreter service.

13. The amended application filed by the applicant essentially raised the following grounds of appeal:

a) The Tribunal failed to seek additional information pursuant to s.424 of the Act.

b) The Tribunal failed to comply with s.424A of the Act in that it failed to give him its opinion as to his credibility.

c) The Tribunal was biased and misled him during the hearing, restricting his answers and interrupting many times.

d) The Tribunal failed to carefully and fairly consider his claims based on the procedures and criteria described in the UNHCR Handbook.

14. The respondent submissions addressed each of the grounds in turn.

15. In respect of the failure to investigate s.424, the respondent submitted that while the Tribunal has investigative powers under s.424 of the Act, it was not a condition to exercise of its power that it should do so: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB per Gummow and Hayne JJ at [43]. Further, there was no suggestion that the applicant in this case asked the Tribunal to investigate any particular aspect of his claim, or that, to the knowledge of the Tribunal, there was readily available factual material that was likely to be of critical importance regarding an issue for determination which had not been obtained. Accordingly, in the circumstances of this case, there was no obligation to make any enquiry: WADU v Minister for Immigration & Multicultural & Indigenous Affairs per R D Nicholson J at [44]-[46]; Minister for Immigration & Multicultural Affairs v Applicant S per Stone J at [74]. It was noted that the High Court allowed the applicant's appeal from this decision: Applicant S v Minister for Immigration & Multicultural Affairs. However, the appeal only concerned whether the Full Court correctly applied the test in relation to the determination of what would constitute a "particular social group".

16. The respondent submitted that in respect of the second ground, where the applicant claimed the Tribunal failed to observe s.424A of the Act and it was the Tribunal's obligation to bring to an applicant's attention the critical factors on which its decision is likely to turn, did not require the disclosure of the Tribunal decision-making process or disbelief of an applicant's claim: Abebe v Commonwealth of Australia at [187], also see Muin v Refugee Review Tribunal at 265-266 and Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd at [590]-[591]. It was submitted that s.424A of the Act could only be enlivened if the Tribunal's reasons for rejecting the applicant's credibility were based on particular information personal to the applicant: s.424A(3) and Minister for Immigration & Multicultural Affairs v NAMW. It was contented that in this case the Tribunal did not believe the applicant because of his own evidence and the independent country information and, in any event, that information and the Tribunal's doubts in general were discussed with the applicant at the hearing (CB p.73.8).

17. In respect of the ground of bias and bad faith, it was submitted that the absence of bona fides was to be proved other than by perusing the fact of the record: O'Toole v Charles David Pty Ltd. However, proof of bad faith necessitated proof of extreme circumstances: Dan v Commissioner of Taxation at [34]; Diahatsu Australia v Commissioner of Taxation at [36] such as dishonesty: WAFV of 2002 v Refugee Review Tribunal; SBAP v Refugee Review Tribunal. It was submitted that it was a serious allegation which should not be made lightly: Kordan Pty Ltd v Commissioner of Taxation. Counsel submitted that there was no proper evidence to support an assertion that the Tribunal acted in bad faith.

18. It was submitted that there was no evidence that the Tribunal gave a decision which was "pre-set in the back of its mind" and there was nothing on the face of the decision to indicate that the Tribunal had a mind "incapable of alteration": Minister for Immigration & Multicultural Affairs v Jia at [532], or that would cause a "fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided": Ex parte H cited by Kenny J in VFAB v Minister for Immigration

19. In the final ground the applicant claimed the Tribunal failed to carefully and fairly consider his claims. It was submitted that this ground of review effectively cavils with the Tribunal's fact finding and thus seeks impermissible merits review.

Conclusion

20. The applicant in these proceedings was self represented and although he failed to file any written submissions he did address his application from the bar table. Where an applicant is self represented the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. Although each ground was particularised, that particularisation was a list of general statements which were unsupported by any evidence of the allegation. Unfortunately, the oral submissions, in many respects, repeated the material within the particulars but did not provide any evidence in support of the allegation.

21. The new allegation raised at the bar table that the Tribunal supplied interpreter spoke in a Chinese dialect unfamiliar to his own was not supported by any evidence. At the directions hearing the applicant indicated that he wished to participate in the Pilot Advice Scheme (NSW) and the Court Registry allocated an adviser. However, he failed to contact the adviser to attend an advisory conference. Had this opportunity been pursued the applicant may have been in a position to pursue this issue. A review of the amended application indicated it had been drafted by someone who has had some legal training although it did not appear to be specific to the applicant's case as they do not draw on any evidence to support the ground pleaded. The situation of the skill of the interpreter remains an unsubstantiated claim.

22. Counsel submitted that the Tribunal's decision was based substantially upon the credibility of the applicant and its adverse credit findings were open on the material before it and as such constituted a legally proper rejection of the applicant's credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs. In the Tribunal's decision each category of the assertions and claims reviewed and subsequently rejected have been grouped on the basis of the applicant's credibility.

23. Turning to the issues raised in the amended application, I accept the arguments and authority in support of those contentions provided by the respondent's Counsel, Miss Francois. I believe that each of the grounds was correctly dealt with in Counsel's submissions, which are re-produced above.

24. I have not been able to identify any ground that the Tribunal committed any jurisdictional error. The applicant's claim should be dismissed.

25. I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date: 6 December 2004
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