SZMYF v Minister for Immigration & Anor [2009] FMCA 130 (3 February 2009)

Last Updated: 26 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYF v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 130

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa to the applicant – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his religious beliefs – no reviewable error.

Migration Act 1958 (Cth), ss.422B, 424A, 424AA, 425A

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Applicant:

SZMYF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3014 of 2008

Judgment of:

Scarlett FM

Hearing date:

3 February 2009

Date of Last Submission:

3 February 2009

Delivered at:

Sydney

Delivered on:

3 February 2009

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs fixed in the sum of $4500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3014 of 2008

SZMYF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant in this case asks the Court to set aside a decision of the Refugee Review Tribunal. He is a citizen of China and he had applied for a protection (Class XA) visa. The Tribunal, however, affirmed the decision made by a delegate of the Minister not to grant the applicant a protection (Class XA) visa. The applicant asks the Court to set aside the decision of the Refugee Review Tribunal and direct the Tribunal to review his case. He claims in his application that jurisdictional error has been made and procedural fairness has been denied.
2. The background to this matter is that the applicant arrived in Australia on 23 March 2008. On 30 April 2008 he applied for a protection (Class XA) visa. In a statement attached to his application for a visa the applicant claimed to have suffered persecution because he and his wife had become Christians. He said in his statement that the Chinese government would not accept the family church and it was prohibited. He said that people were only allowed to attend religious services organised by the government. The applicant claimed that at the end of the year 2002 when he was attending church activities he was arrested. He claimed to have been detained for five days and during that time suffered mental and physical torture from the police. He also claimed to have been heavily fined. The applicant stated that because his wife was in bad health he did not want her to get involved. To protect his wife and his two children the applicant said that he and his wife became divorced in March 2003. After he was released the police kept an eye on him. However, the applicant and his wife remarried in October 2007. However, he claimed that when they were attending religious services in December 2007 the police came and his wife was detained. He claimed that he escaped and obtained a visa to accompany his son to study in Australia. The applicant stated that his wife's health was very bad and she is still in China.
3. A delegate of the Minister for Immigration & Citizenship refused the application for a visa on 14 July 2008. The delegate in her decision referred to independent country information about religious practices in China and about departure procedures from airports in China. The delegate noted that the applicant had left China legally on a valid passport issued to him in his own name. The delegate in her reasons said:
   • The above country information concerning PRC departure procedures indicates that a person who had come to the adverse attention of the PRC authorities because of their involvement in activities which are considered to be anti-government is likely to face difficulties in obtaining a passport through legal means. Furthermore, the country information suggests that even if a person who is of adverse interest to the authorities manages to obtain a passport, it is very unlikely that they would be allowed to exit the country given the stringency of the checking which occurs at points of departure. The applicant has presented a history of religious involvement that brought him to the adverse attention of the PSB. In addition, he claims he was under constant surveillance. Therefore I am satisfied that if the applicant had been detained and interrogated, it is very unlikely that he would have been able to depart the PRC legally using a passport that had been issued in his own name. That he did so is a strong indication that his claims concerning these matters are not based in fact[1].
4. After the delegate refused his application for a protection visa, the applicant then applied to the Refugee Review Tribunal for review of the delegate's decision. That application was received by the Tribunal on 14 August 2008. No additional documentary evidence was provided with the application for review. The Tribunal wrote to the applicant on 25 August 2008 inviting him to appear before the Tribunal. The applicant was originally invited to attend on 23 September 2008 but the Tribunal changed that date to 24 September 2008. The applicant attended the Tribunal hearing on 24 September 2008 and gave evidence with the assistance of an interpreter. The Tribunal notes that the hearing was conducted with the assistance of an interpreter in the Fuqing (Chinese) and English languages. The proceedings before the Court today have been conducted with the assistance of an interpreter in the Mandarin language. I note that the applicant's application for judicial review filed on 19 November 2008 indicates that he would require an interpreter in the Mandarin language.
5. The applicant did not attend Court on the first Court date, which was 8 December 2008. However, the lawyer for the Minister did not ask the Court to dismiss the application but asked for it to be listed for final hearing. The application was listed for final hearing today and the Court asked for the assistance of ain interpreter in the Mandarin language, which is the language that the applicant nominated in his application. I note that the applicant does not appear to have had any difficulty understanding or making himself understood with the assistance of an interpreter in the Mandarin language.
6. The applicant in any event gave evidence before the Tribunal. The Tribunal signed its decision on 28 October 2008. It handed down its decision that same day. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa. The Tribunal in its decision record sets out a detailed summary of the applicant's claims and evidence. The Tribunal records that it invited the applicant to comment on or respond to certain concerns that it raised during the hearing. The Tribunal records the subsequent procedure in this way:
   • The Tribunal then invited the applicant to comment on or respond to the concern raised and advised the applicant that he did not have to comment or respond immediately. The Tribunal informed the applicant that he could seek additional time to do so. When the concern was put to the applicant, he indicated that he did not wish to comment or respond to the concern raised by the Tribunal and did not request any additional time to do so[2].
7. The Tribunal went on to ask the applicant further questions and noted that he reconfirmed that he did not need any further time to comment on or respond to the information provided to him by the Tribunal.
8. The Tribunal referred to independent country information about the attitude of public authorities to churches in Fujian Province. In particular, the Tribunal referred to a report by the political counsellor of the Canadian Embassy in Beijing prepared in the year 2000, a report dated September 2005 from the Canadian Immigration and Refugee Board and a report from Human Rights in China dated 4 August 2005. The Tribunal also referred to information from the Department of Foreign Affairs and Trade about the existence of what are known as alert lists which are used in airports and are linked to passports and Chinese identity cards.
9. In its Findings and Reasons the Tribunal found that the applicant was a citizen of the People's Republic of China. This finding was based on the applicant's evidence at the hearing and his Chinese passport. The Tribunal was satisfied about evidence of the applicant's identity and date of birth. However, the Tribunal did not accept any of the applicant's other claims. The Tribunal set out its reasons for doing so at pages 104 through to 108 of the Court Book. Basically the Tribunal was not satisfied about the veracity of the applicant's own evidence to the Tribunal. The Tribunal compared the applicant's evidence to independent country information to which it had previously referred. The Tribunal went on to make this finding:
   • The Tribunal finds that the applicant's evidence is not credible. The Tribunal finds that the applicant is not a witness of truth. Because of the Tribunal's finding that the applicant is not a witness of truth, the Tribunal is not satisfied that the applicant's religion was or is the essential and significant reason for the persecution which he claims he fears[3].
10. The Tribunal concluded that there was not a real chance that the applicant would face serious harm for reasons of his religion or any other Convention-related reasons either at the time of the hearing or in the reasonably foreseeable future if he were to return to his country of nationality. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision not to grant the applicant a protection (Class XA) visa.
11. The applicant commenced proceedings in this Court on 19 November 2008 by filing an application and an affidavit in support. The grounds of the application are very sparse. They merely state that jurisdictional error has been made and procedural fairness has been denied. No written submissions have been filed but the applicant attended Court and made an oral submission. He told the Court that he was persecuted when he was in China. He said that he was detained for five days and was abused both mentally and physically. He reaffirmed his claim to have divorced his wife in 2003 and to have remarried her in 2007. He claimed that his wife was arrested again in 2007. He also told the Court that he was not arrested but he ran away and obtained a visa and travelled to Australia. He also told the Court that he suffered from memory loss but he did not mention this to the Tribunal at the hearing. He said that he did tell the Tribunal that he had been mentally and physically abused.
12. Ms Dinihan who appears for the Minister submitted that the two grounds in the applicant's application were not particularised and should be dismissed. She referred to the Tribunal's obligations in respect of the natural justice hearing rule as being set out in pt. 7 div. 4 of the Migration Act. This is made clear by the provisions of s.422B of the Act. Ms Dinihan also submitted that the applicant had not provided a transcript of the hearing and without such a transcript there was no evidence of any breach of s.425 of the Act in the way the hearing was conducted. I was referred to the decision of the Full Court of the Federal Court in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs[4]. In addition, it was submitted that the Tribunal did not rely on any information that needed to be raised under s.424A of the Migration Act and the Tribunal had complied with s.424AA of the Migration Act at the hearing. In short, it was submitted that the applicant was provided with a full and fair opportunity to meet the Tribunal's concerns about his claims. It is submitted that the Tribunal complied with its statutory obligations to afford procedural fairness and no breach of the Act has been shown.
13. In dealing with the application, ground 1 states baldly that jurisdictional error has been made. The ground does not set out how a jurisdictional error has been made or what sort of an error it is. There is nothing to show any jurisdictional error on the part of the Tribunal. As to the claim in the second ground of a denial of procedural fairness, it is well established that s.422B of the Migration Act provides that the matters in pt. 7 of div. 4 of the Act provide an exhaustive statement of the effect of the natural justice hearing rule. I am satisfied that there has been no breach of s.425 of the Migration Act. The Tribunal invited the applicant to attend a hearing and provided him with an interpreter in the language of his choice. The Tribunal's written invitation complied with s.425A of the Act. There is no reason to find that the hearing in any way did not take place in accordance with the legislation. The Tribunal made its decision on the basis of a comparison of the applicant's evidence with independent country information. That is essentially what the delegate did in her decision. Accordingly, the applicant would have been aware that the question of his credibility was in issue at the Tribunal hearing. There is no breach of s.425 of the Migration Act. There is no breach of s.425A of the Act. The Tribunal relied on the applicant's evidence and on independent country information. Both of those matters are covered by the exceptions in s.424A(3) of the Migration Act. In any event, in putting information to the applicant for his comment at the hearing, the Tribunal complied with the requirements of s.424AA of the Migration Act. I am satisfied that no procedural unfairness has been shown. Indeed I am satisfied that no jurisdictional error has been shown.
14. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. Privative clause decisions are not subject to orders in the nature of certiorari or mandamus. As the decision is a privative clause decision, it follows that the application must be dismissed. I will consider the question of costs.
15. There is an application for costs on behalf of the first respondent Minister. The applicant has been unsuccessful in his claim before this Court and I am satisfied that it is appropriate for the Court to make an order for costs in favour of the Minister. Ms Dinihan estimates the amount of costs to be sought at the sum of $4500. In the light of a query by the applicant as to how that amount has been made up, Ms Dinihan has provided the Court with a rundown in a summarised form as to how that amount has been calculated. I see no error in that approach and the documents in the Court file tend to support the claims that she has made. I also note that a lump sum of $4500 is within the scale provided by the Federal Magistrates Court Rules. I am satisfied that $4500 is an appropriate amount for costs.

I certify that the preceding 15Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fifteenfifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Adriana Coutman

Date: 25 February 2009

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[1] See Court Book at page 50
[2] See Court Book at page 100,101,102
[3] See Court Book at page 108
[4] [2004] FCAFC 241