SZMSK & Anor v Minister for Immigration & Anor [2009] FMCA 299 (9 April 2009)

Last Updated: 14 April 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSK & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 299

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of Refugee Review Tribunal decision – whether the applicants are citizens of China or Indonesia – whether the applicants had a claim against either China or Indonesia – credibility – natural justice – no jurisdictional error. PRACTICE & PROCEDURE – Adjournment – application for adjournment refused – applicant given leave to file and serve further submissions.

Migration Act 1958 (Cth) ss.36, 51A, 57, 91X, 357A, 422B, 424AA, 425, 425A, 426A, 441A, 474

SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39 Attorney-General (NSW) v Quin (1990) 170 CLR 1 SXFB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 164 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 SZALV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1370 VCAK of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 WAGJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432 Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1986) 6 FCR 155 Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2009) 164 FCR 151 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 followed SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 followed. VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388; (2005) 146 FCR 562 Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41 followed. Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249; (2003) 133 FCR 221 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

First Applicant:

SZMSK

Second Applicant:

SZMSL

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2333 OF 2008

Judgment of:

Scarlett FM

Hearing date:

1 December 2008

Date of Last Submission:

24 December 2008

Delivered at:

Sydney

Delivered on:

9 April 2009

REPRESENTATION

Applicants:

First Applicant in person

Solicitors for the Applicant:

Not legally represented

Counsel for the Respondent:

Ms Nolan

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

(1) The First Applicant is appointed the litigation guardian of the Second Applicant.
(2) The Application for adjournment of the hearing is refused.
(3) The Application for review of the decision of the Refugee Review Tribunal filed on 8 September 2008 is dismissed.
(4) The First Applicant is to pay the First Respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2333 of 2008

SZMSK

First Applicant

SZMSL

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicants, who claim to be citizens of China, ask the Court to set aside a decision of the Refugee Review Tribunal signed on 31st July 2008 and handed down on 12th August. The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Citizenship not to grant the Applicants protection visas.
2. The Applicants seek the following relief:
   1. A writ of certiorari[1] quashing the Tribunal decision;
   2. A declaration that the Tribunal decision was made in excess of jurisdiction and is null and void; and
   100. An order in the nature of mandamus directed to the Tribunal requiring it to redetermine the application for a protection visa according to law.
3. They rely on the following grounds:
   1. The First Applicant will be at risk of persecution if she returns to China.
   2. The Refugee Review Tribunal failed to understand the Applicants’ claims.
   100. The Tribunal exceeded its jurisdiction by not giving natural justice to the Applicants.
   4. The Refugee Review Tribunal refused to grant the application for a visa without any proper grounds or any proper investigation.

Background

4. The Applicants are a mother and daughter aged 39 and 13 years respectively. They applied for Protection (Class XA) visas on
   8th January 2008. The First Applicant, the mother, applied for protection on the basis of a fear of persecution for her religious belief, claiming to be a Christian. The daughter is a Part D Applicant, claiming as a member of her mother’s family unit who does not have her own claim to be a refugee.
5. They arrived in Australia on 1st January 2007, having travelled on Indonesian passports issued in different names. They arrived on a student guardian visa and a student visa respectively. In a statement submitted with their application for protection visas, the First Applicant claimed that she and her daughter fled China to Indonesia in September 2006 after her husband and his parents were arrested and detained by police on 20th August 2006.
6. The First Applicant also expressed regret in her statement for not disclosing that she had previously entered Australia.[2]
7. A delegate of the Minister invited the First Applicant to attend an interview on 1st February 2008, which was rescheduled to 6th February. The First Applicant attended the interview, where it was put to her that she and her daughter were in fact citizens of Indonesia and not China. She denied that they were Indonesian citizens and gave permission for the Department to carry out an identity check.[3]
8. The First Applicant was again interviewed on 27th March 2008, where it was put to her that she had previously applied for visas to enter Australia in Jakarta and had been refused on 19th May 2005 and
   21st October 2005. She had also been refused visas by the Canadian Embassy in Jakarta on 8th July 2004 and the United States Embassy on 25th March 2004.
9. The delegate found that the Applicants were Indonesian citizens, saying:
   • As discussed under ‘Identity concerns’ there is reliable and extensive evidence that the applicant and her daughter are Indonesian citizens and not Chinese citizens as claimed. The applicants may also have Chinese names as opposed to their Indonesian names but they are not Chinese citizens.[4]
10. The delegate refused their applications on 31st March 2008, finding that their claims against China failed because they were not Chinese citizens but Indonesian citizens. They had not made any claims against Indonesia.[5]

Application for Review by the Refugee Review Tribunal

11. The Applicants applied to the Refugee Review Tribunal for review of that decision on 16th April 2008. They were represented by a migration agent, Mr Stephen Chan.
12. The Tribunal wrote to the Applicants care of their migration agent on 26th May 2008, inviting them to attend a hearing of the Tribunal on
    26th June. On 23rd June, the Applicants’ migration agent informed the Tribunal that the Applicants had received some documents from China in relation to their identity. Mr Chan provided the documents and English translations of them the following day.
13. The First Applicant attended the Tribunal hearing 26th June, accompanied by Mr Chan. She gave evidence with the assistance of an interpreter in the Mandarin language.
14. The Tribunal signed its decision on 31st July 2008 and handed the decision down on 12th August.

The Refugee Review Tribunal Decision

15. The Tribunal affirmed the delegate’s decisions not to grant the Applicants Protection (Class XA) visas.
16. A copy of the Tribunal Decision Record appears in the Court Book at Pages 413 to 439. The Tribunal set out a summary of the evidence before it, including a lengthy summary of the Applicant’s evidence at the hearing. The Tribunal then set out how it had followed the procedure set out in s.424AA of the Migration Act to raise a number of issues with the First Applicant and advised her that she could seek additional time to comment or respond to the information.
17. The Applicant had a discussion with her migration agent and he then sought a two week adjournment of the review, to which the Tribunal agreed. After the hearing, the Applicant provided a submission dated 8th July 2008 and a statement of the same date.

The Tribunal’s Findings and Reasons

18. The Tribunal rejected the First Applicant’s claims in their entirety, saying:
    • The Tribunal does not accept that she was born in China, lived in China all her life, and fled China on 18 September 2006. The Tribunal does not accept that she only resided in Indonesia from 18 September 2006 as a visitor until travelling to Australia with her daughter on false passports. The Tribunal rejects her claims concerning China and rejects her claim that she cannot return to Indonesia.[6]
19. The Tribunal then set out a summary of the evidence on which it relied to arrive at that conclusion. It noted the First Applicant’s explanations for the Indonesian passports upon which she and her daughter travelled and for the previous applications for visas.[7] It also set out other claims and arguments made by the First Applicant.[8]
20. The Tribunal dealt with the First Applicant’s arguments in this way:
    • 43. The applicant’s arguments rely on a series of fake documents being created in Indonesia over a long period; they rely on several false passports being substituted including a passport for a child with the exact same birth date as her daughter. However, the copies of documents from the Indonesian passport file for S[9] show the passport was validly issued in March 2004 to the applicant who was an Indonesian national: the passport was not photo substituted. The applicant’s later argument that her husband may have organised for the passport to be issued does not explain why he organised, without telling the applicant, for a false Indonesian passport to be issued to her in March 2004 at a time when they remained living in China and well before the claimed incident in August 2006. The Tribunal rejects the applicant’s claims and arguments.
    • 44. The applicant’s argument concerning an agent in Indonesia using fraud to obtain and change documents does not explain how an agent would have falsified past visa applications held by the Australian government. Nor does it explain how or why an agent would have falsified information in the applicant’s March 2004 passport application held by the Indonesian government which was unrelated to the applicant’s student guardian visa application. The applicant’s claim that she was nervous during the hearing did not specify how her nervousness affected her evidence during the hearing. The Tribunal rejects these claims and arguments.[10]
21. The Tribunal found that the First Applicant’s name was S, who was an Indonesian national and had been validly been issued with an Indonesian passport.
22. The Tribunal also found that the Second Applicant was the First Applicant’s daughter and was an Indonesian national born in Indonesia. She had been validly issued with an Indonesian passport.
23. The Tribunal found that the First Applicant was not a credible witness and had fabricated her claims that she and her daughter were Chinese nationals with other names who had born in China. The Tribunal also found that the First Applicant had fabricated her claims that she and her daughter had fled China in September 2006 and had fabricated all of the claims concerning the events that she said had led her to leave China. The Tribunal concluded that the First Applicant had fabricated her claims that she and her daughter had adopted false identities as Indonesian nationals and had travelled on false Indonesian passports.
24. In summary, the Tribunal found that the First Applicant was not a credible witness and had fabricated her story for the purpose of claiming refugee status. The Tribunal considered the First Applicant’s claim against Indonesia, which was that Indonesia cooperates with China. The Tribunal disposed of that claim by saying:
    • However, as the Tribunal finds she is an Indonesian national and is able to reside in Indonesia, and finds that she is not a fleeing Chinese national, the Indonesian government’s cooperation with China does not lead her to have a well-founded fear of persecution for a Convention reason.[11]
25. The Tribunal noted that the Second Applicant did not have claims of her own and found that she was an Indonesian national with a right to enter and reside in Indonesia who had not made any claim against Indonesia. Accordingly, the Tribunal was not satisfied that she had a well-founded fear of persecution for a Convention reason if she were to return to Indonesia.
26. The Tribunal was not satisfied that the Applicants were persons to whom Australia has protection obligations under the Convention and therefore did not satisfy the criterion in s.36(2) for a protection visa.

Application for Judicial Review

27. The Applicants commenced proceedings in this Court by filing an application and an affidavit in support on 8th September 2008. I note that the Second Applicant is not an adult and I made an order appointing her mother, the First Applicant, as her litigation guardian.
28. The Minister filed a Response on 16th September 2008, opposing all the orders sought. The Minister’s solicitors filed an outline of submissions on 24th November 2008.
29. The Applicants did not file any amended application. However, on
    24th November the First Applicant arranged for a caseworker from the Australian Red Cross Community Care Pilot scheme to fax through to the Court a written submission together with copies of a student card and a Certificate of Graduation dated 7th September 1987 and July 1983 respectively.
30. The First Applicant attended Court on 1st December 2008. She sought an adjournment for a period of two months, claiming that:
    1. she was illiterate;
    2. she had not seen a free RRT panel legal adviser; and
    100. she needed further documents from China
31. The First Applicant later agreed that she had seen a lawyer on the panel, Mr Michael Jones, and I note from the Court file that Mr Jones submitted a certificate advising that he met with the Applicant on
    13th November 2008 with the assistance of a Mandarin interpreter and provided her with written legal advice. The fax message from the Australian Red Cross stated:
    • My client has recently obtained legal advice through the Federal Magistrates Court scheme providing one free legal consultation to clients.
32. I refused the adjournment, noting that the Applicant had commenced proceedings on 8th September 2008 and that the Court did not consider documents going to the merits of the Applicants’ refugee claim that had not been before the Tribunal.
33. The First Applicant reiterated her request for an adjournment, claiming to have been suffering from a thyroid condition that required medical attention. She did not produce a medical certificate. She told the Court that she was so nervous that she was shaking and unable to express herself and was for that reason unable to proceed with the hearing.
34. I again refused the adjournment but directed that the Applicant may file and serve any further written submissions within 14 days.
35. On 15th December 2008 the Applicants’ caseworker at the Australian Red Cross faxed to the Court a written statement in English that had been translated from Chinese and three other documents in Chinese.
36. The Minister’s solicitors filed a Further Outline of Submissions on
    24th December 2008.

The Applicants’ Submissions

37. The Applicants’ first submission, faxed on 24th November 2008, says:
    • 1. I am a Chinese. I was born at Qianxue Village, Sanshan Town, Fuqing City, Fujian Province. I grew up in the rural area since my childhood. I attached both my primary school graduation certificate and my intermediate medical school student card to prove this. These are the genuine documents and I do not think they could be manufactured. I do not understand why RRT member just relied on the limited evidence to make the conclusion that my daughter and I are not Chinese citizens. This is quite ridiculous.
    • 2. It is true that my daughter and I did use the bogus Indonesia passport (with the replacement of our photo) to enter Australia. There is no way that people like me would be able to obtain genuine passport in my local area. Under this circumstance, I had to use Indonesia as a transition port. My friend helped me with the matters to deal with people smugglers regarding the application for all the necessary documents for my overseas trip.
    • 3. It is not fair for RRT to come to the conclusions that I am an Indonesian just by checking the application details relating to my bogus passport. I believe that RRT should also check the Chinese documents I provided as the evidence.
38. The Applicants’ second submission, received by fax on 15th December 2008, says:
    • 1. On the night of the hearing day, I developed a cold, with headache, ear buzzing sound, and my body was alternating hot and cold, I meant to call you to postpone the hearing on the morning of the hearing day but I did not get the time to do it. Therefore, I still came before you with my sickness. I did try to request a suspension of my trial but did not succeed. I do not blame you for that; I just beg your understanding.
    • 2. I am a single mother and a good mother to my daughter and it is also hard for us as I am without work right. I could not afford to hire a lawyer to help me to file the documents and fight the case since there have already been some problems with my daughter’s schooling, accommodation and meals. Would it be possible for you to please find me lawyer who would not charge me? I would be grateful for your help and understanding.
    • 3. It is true that my daughter and I got the changing Indonesian passports in order to come to Australia. It is impossible for people like us to get our own passports in China. Therefore, we asked the “snake heads” to arrange all the documents needed for us to leave the country and only Indonesia could be a transit point. The RRT Member judges the decision solely on the basis of our Indonesian passports that we are Indonesians but this is not the case. We are Chinese.
    • 4. It is unfair that the RRT Member judged us as not being Chinese only by listening to one side of the story. Would you please check out the attachments.
    • 5. For your information I am attaching the primary school certificate, the secondary school certificate and Fu Jian Fu Qing health workers secondary school student certificate. I have also lodged the application for the Chinese Travel Document.
39. The copies of the documents referred to appear not to have been produced to the Refugee Review Tribunal and therefore cannot be considered by the Court. Where a Court is conducting judicial review of a decision of the Refugee Review Tribunal, it cannot take into account fresh evidence going to the merits of an applicant’s refugee claim.
40. Again, the Applicants’ second submission contains a request for the Court to provide pro bono legal representation. However, the time for that has passed. The Court has refused an adjournment of the hearing and what is to take place now is for the Court to make its decision. I am not satisfied that the matter should be re-opened for further submissions. I take into account that the Applicants already have had advice from a lawyer on the RRT Legal Advice Panel.

The First Respondent’s Submissions

41. Counsel for the Minister, Ms Nolan, submitted that there was no indication that the Tribunal ignored any of the Applicant’s claims that it was required to consider. The Tribunal’s decision was underpinned by its refusal to accept the Applicants’ claimed identity and nationality.
42. The fact that the Tribunal omitted to engage in an intellectual assessment of the Applicants’ claims with regard to China in the absence of a relevant finding of nationality consistent with those claims does not demonstrate a failure to take into account a relevant consideration.
43. It was also submitted that there is no basis for finding that the Tribunal failed to accord natural justice. The Tribunal observed the procedures mandated by Division 4 of Part 7 of the Migration Act, particularly those provided by s.424AA.
44. There was no transcript of the Tribunal hearing provided and the Court is entitled to accept that the Tribunal did comply with s.424AA, as it said it did (see SZLXE v Minister for Immigration and Citizenship[12] at [19]).
45. Ms Nolan submitted that if the Applicants wished to challenge the Tribunal’s decision on the basis that it failed to comply with s.424AA there was an onus to put on evidence, such as a transcript (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs[13] and also SZLWI v Minister for Immigration and Citizenship[14] at [21]).
46. The Tribunal’s decision was based on a rejection of the First Applicant’s claimed identity. As a result of this rejection, the Tribunal was not obliged to consider the Applicants’ claims against China.
47. Further, the Tribunal is under no general duty to investigate or enquire. There was nothing apparent on the Tribunal’s reasons for decision to show that there may have been an obligation on the Tribunal to seek further factual information of which it was aware “that is, a decision may be unreasonable in the relevant sense, and therefore, an improper exercise of the power, where to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained” (Luu v Renevier[15] at 50).
48. It was contingent on the First Applicant to make her own case; it was not incumbent on the Tribunal to make the Applicant’s case for her, she submitted.
49. The Minister’s solicitors filed a further outline of submissions in reply to the Applicants’ submissions and further submissions. In particular, it was submitted that the First Applicant’s written arguments were largely an attempt to engage the Court in impermissible review (see Attorney-General (NSW) v Quin[16] at [39]).
50. Dealing with the Applicants’ claim that it was unfair for the Refugee Review Tribunal to make the factual findings it did without undertaking investigations in relation to the false Indonesian passport and the Chinese documents that were submitted, the Minister submits that there is no general duty upon the Tribunal to investigate an Applicant’s claims or to consider utilising its permissive statutory powers[17]. A duty to inquire only arises if “...it is obvious that material is readily available which is centrally relevant to the decision to be made” (Prasad v Minister for Immigration and Ethnic Affairs[18] per Wilcox J at 169-170; see also Minister for Immigration and Citizenship v Le[19]).
51. It is submitted on behalf of the Minister that this is not such a case because:
    1. There is no evidence of the existence of any readily available and centrally relevant material in respect of which the Tribunal unreasonably failed to make inquiries; and
    2. The Tribunal’s treatment of the Applicants’ Chinese documents was not such that any inquiry by the Tribunal into their veracity could have had any impact on the result.
52. As to the Applicants’ claims of a denial of common law natural justice or procedural fairness, s.422B of the Migration Act provides that Division 4 of Part 7 of the Act is an exhaustive statement of the natural justice hearing rule. Other notions of what might constitute common law natural justice are expressly excluded.[20]

Conclusions

53. This is a case where the central issue is the question of the Applicants’ identity and nationality. The Applicants claim to be Chinese nationals with a fear of persecution for a Convention reason in China. The Tribunal found, as did the delegate, that the Applicants are not nationals of the People’s Republic of China, but nationals of the Republic of Indonesia, albeit of Chinese ethnicity.
54. The Tribunal found that the names given by the Applicants on their Indonesian passports are their correct names and that the First Applicant’s attempt to construct for herself and her daughter a Chinese history and nationality is a fabrication. It would follow that, if the Applicants are not Chinese nationals they have no claim to be assessed for protection against the People’s Republic of China.
55. The Applicants’ first ground states:
    • I am a citizen of China. If I go back to my country I will be at risk of suffering persecution within the meaning of the 1951 convention relating to the Status of Refugees.
56. This ground is a challenge to the Tribunal’s factual finding that the Applicants were no Chinese citizens at all, but citizens of Indonesia. It is an attempt to persuade the Court to undertake a review of the merits of the Applicants’ case, which is not available in judicial review proceedings. The Tribunal considered the evidence that arose from the identity check conducted by the Department, with the First Applicant’s consent, and found that the Applicants’ Indonesian passports were genuine and rejected the Applicants’ Chinese documents as having been fabricated. This was a factual matter for the Tribunal and there is no jurisdictional error.
57. The Applicants’ first ground has not been made out.
58. The Applicants’ second ground claims:
    • Member of the Refugee Review Tribunal failed to understand my claims and failed to consider relevant matters. Further particulars to be provided.
59. The Tribunal clearly summarised the Applicant’s claims in its Findings and Reasons. It noted that:
    1. The First Applicant entered Australia on an Indonesian passport in the name of S[21].
    2. She claimed that she was really a Chinese national named X[22].
    100. She claimed that her Indonesian passport was false.
    4. The First Applicant claimed that her daughter is a Chinese national named H[23].
    5. She claimed that her daughter’s Indonesian passport in the name of L[24] was false.
    6. She claimed that she and her husband were Christians in an underground Church in China and that she fled China with her daughter and son and went to Indonesia.
    7. They travelled on Chinese passports in false names.
    8. She sent her son back to China.
    9. She and her daughter left Indonesia for Australia, using Indonesian passports in false names.[25]
60. The Tribunal clearly understood the Applicants’ claims but it rejected them in their entirety.[26] The First Applicant has not set out what relevant matter the Tribunal failed to consider and no such claim is apparent from the Tribunal Decision Record.
61. The Applicants’ second ground has not been made out.
62. The Applicants’ third ground claims that the Tribunal:
    • Exceeded jurisdiction in arriving at the decision to affirm the Respondent’s decision not to grant me a protection visa in that it:
      • i) I was not accorded natural justice.
63. Section 422B(1) is to be found in Division 4 of Part 7 of the Migration Act and it provides;
    • This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
64. The Full Court of the Federal Court has made it clear in Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat section 51A of the Migration Act operates to exclude the common law fair hearing rule:
    • [66] What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
    • [67] Other aspects of the common law of natural justice, such as the bias rule, are not excluded: see VXDC[27] at [27].
65. The Full Court applied that decision to ss.422B and 357A in SZCIJ v Minister for Immigration and Multicultural Affairs at [7]-[8]:
    • [7] In another decision handed down today, Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61, we have dealt with the same point in relation to s.51A of the Act, which is the equivalent of s.422B in relation to visa applications at Departmental level (see also s.357A in relation to reviews by the Migration Review Tribunal).
    • [8] For the reasons given in Lay Lat at [59]-[67] we hold that the common law natural justice hearing rule did not apply.
66. More recently, the Full Court of the Federal Court (Spender, Buchanan and Logan JJ), in Saeed v Minister for Immigration and Citizenship[28] has affirmed the correctness of the decisions in Lay Lat and SZCIJ:
    • [46] Finally, we do not accept that the analysis in Lay Lat (or its adoption in SZCIJ) is wrong, judged by any standard. The construction accepted in Lay Lat is not just the only approach which accommodates, rather than rejects, relevant and clear statements of legislative intent but is the only one which allows the harmonious operation of the provisions in question. In particular, the observations in Lay Lat at [68], set out earlier are unanswerable on the face of ss.51A and 57 as they now appear together in the Act (see also Wu[29] at [23]-[24]).
67. In the present case, the First Applicant argues that the Tribunal acted unfairly by deciding that she was Indonesian “just by checking the application details relating to my bogus passport. I believe that the RRT should also check the Chinese documents I provided as the evidence.”[30]
68. The Tribunal undertook a thorough analysis of the Applicant’s Indonesian documents. It also considered Independent Country Information about document fraud in China[31]. It did consider documentary evidence which the First Applicant claimed supported the contention that she and her daughter were Chinese nationals.
69. In regard to the First Applicant’s husband’s documents, the Tribunal stated:
    • (The First Applicant’s husband)’s[32] passport issued in August 2004 and his visitor visa application in October 2005 (made with the Applicant and children) show that he is a Chinese national who had resided in Indonesia where his passport was issued. This contradicts the Applicant’s evidence that he had never left China.[33]
70. The Tribunal did consider documentary information that the First Applicant provided in support of her claim to be a Chinese national.
    It did so, however, in the context that it had found that she was not a credible witness.[34] The Tribunal stated:
    • 51. As discussed above, the applicant provided documentary information in support of her claims to be X[35] which included: a Chinese ID card; a Chinese marriage certificate (to claimed husband H[36]); Chinese birth certificates for herself, her claimed husband and 2 children; and a current Chinese school enrolment for her son. She also produced several letters of support which indicated she was a Chinese national who had fled persecution. The Tribunal has taken into account the corroborative evidence, but it has not overcome the Tribunal’s concerns with the applicant’s evidence.[37]
71. The Tribunal complied with the requirements of s.425 of the Act by inviting the Applicants to attend a hearing. The First Applicant attended and gave evidence with the assistance of an interpreter in the Mandarin language. The main issue was the question of the Applicants’ identities and nationality, which was the very issue that concerned the delegate.
72. There was no procedural unfairness of the type referred to by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[38]. The Tribunal considered the First Applicant’s claim to have been nervous during the hearing[39] but found that she did not specify how her nervousness affected her evidence during the hearing.[40]
73. There is no breach of s.425 of the Migration Act.
74. The Tribunal wrote to the Applicants’ migration agent on 26th May 2008, inviting the Applicants to attend a hearing on 26th June 2008, exactly one month later. The notice of invitation complied with the requirements of s.425A of the Migration Act, in that it:
    1. gave the Applicants notice of the day, time and place that they were scheduled to appear;
    2. was given by writing to the Applicants and transmitting the notice by fax in a method specified in s.441A of the Act;
    100. gave at least the prescribed period of notice; and
    4. contained a statement to the effect of s.426A.
75. The Tribunal considered Independent Country Information, the First Applicant’s evidence and information to which the First Applicant had consented when she gave authority to the Department to seek personal information in relation to her visa applications[41]. There is no breach of s.424A(1) of the Act.
76. There is nothing to suggest that the Tribunal did not follow the procedure in s.424AA of the Act, as it said it did. The Tribunal considered the First Applicant’s written response made in the form of two submissions on 8th July 2008.[42]
77. There is no breach of s.424 of the Act.
78. In summary, the Tribunal complied with the requirements of Division 4 of Part 7 of the Act and, consequently, there is no breach of the natural justice hearing rule.
79. The Applicants’ third ground of review has not been made out.
80. The Applicants’ fourth ground of review claims that the Tribunal “refused to grant my protection visa application without any proper grounds and proper investigation”.
81. It is well established that the Refugee Review Tribunal has no general obligation to investigate or inquire. There was no evidence of any readily available factual material that was likely to be of critical importance in relation to a central issue for determination that was not obtained. The Applicants’ claim for protection depended on their claim to be nationals of China and, once that key issue was not accepted, the Tribunal had no obligation to make any inquiry about matters concerning a fear of persecution for a Convention reason in China.
82. The Tribunal assessed the Applicants’ claims against Indonesia. It noted the claim made by the First Applicant at the hearing that the Indonesian government cooperates with China and dealt with that claim in this manner:
    • However, as the Tribunal finds she is an Indonesian national and is able to reside in Indonesia, and finds that she is not a fleeing Chinese national, the Indonesian government’s cooperation with China does not lead her to have a well-founded fear of persecution for a Convention reason in Indonesia.[43]
83. The Tribunal refused to grant the application for a protection visa because it was not satisfied that the First Applicant had a well-founded fear of persecution for a Convention reason in China because it was not satisfied she was a national of that country. The Tribunal was not satisfied that the First Applicant had a well-founded fear of persecution in Indonesia, the country of which it was satisfied she was a natural, because the only claim made against Indonesia related to Chinese nationals.
84. Accordingly, the Tribunal did not refuse the First Applicant’s application for a protection visa “without any proper grounds”.
85. The Tribunal had no obligation to conduct any independent investigation of the Applicants’ claims other than considering those claims that were made. Accordingly, it did not fall into error by refusing the application for a protection visa “without...proper investigation”.
86. It follows that the Applicants’ fourth ground of review has not been made out.
87. The Applicants are not legally represented in this proceeding, although they did have the advice from a solicitor on the RRT legal advice panel. The First Applicant had no representation at the hearing before this Court. My independent consideration of the Tribunal decision and supporting documents does not disclose any arguable ground for jurisdictional error not otherwise referred to by the First Applicant or the Minister’s lawyers.
88. There is no jurisdictional error. The Tribunal decision is a privative clause decision. As a privative clause decision, it is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s.474(1)(c)).
89. It follows that the application will be dismissed with costs. I note that the Second Applicant is a child who has played no independent part in this proceeding and I consider that costs should only be ordered against the First Applicant.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 8 April 2009

---

[1] The application seeks that the writ of certiorari should be directed to the First Respondent, who is the Minister for Immigration and Citizenship, but that is clearly a clerical error because the decision was made by the Second Respondent, the Refugee Review Tribunal.
[2] Court Book 229
[3] Court Book 259
[4] Court Book 325
[5] Court Book 326
[6] Court Book 433
[7] Court Book 434
[8] Court Book 435
[9] The first applicant’s name has not been published in order to comply with s 91X of the Migration Act 1958
[10] Court Book 435-436
[11] Court Book 438
[12] [2008] FCA 1312
[13] [2004] FCAFC 241
[14] [2008] FCA 1330
[15] (1989) 91 ALR 39
[16] (1990) 170 CLR 1
[17] SXFB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 164 at [8]; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18]- [21]; SZALV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1370 at [12]; VCAK of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [21], [24]-[25]; W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407; [2002] FCAFC 432
[18] (1985) 6 FCR 155
[19] (2007) 164 FCR 151
[20] Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 applied in SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7]-[8]
[21] Name deleted to comply with s 91X of the Migration Act
[22] Name deleted
[23] Name deleted
[24] Name also deleted
[25] Court Book 431-432
[26] Court Book 433
[27] VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562
[28] [2009] FCAFC 41
[29] Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249; (2003) 133 FCR 221
[30] Applicants’ submission 24 November 2008 at [3]
[31] Court Book 431
[32] Name deleted for s 91X reasons
[33] Court Book 436 at [47]
[34] Court Book 436 at [48]
[35] Name deleted
[36] Name deleted
[37] Court Book 437
[38] (2006) 228 CLR 152; [2006] HCA 63
[39] Court Book 435 at [42]
[40] Court Book 436 at [44]
[41] Court Book 259
[42] Court Book 431 at [33]
[43] Court Book 438 at [57]