SZQKX v Minister for Immigration & Anor [2011] FMCA 879 (11 November 2011)

Last Updated: 23 November 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQKX v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 879

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 422B, 424A, 425, 425A, 476

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609 SZEZI v Minister for Immigration [2005] FCA 1195 SZIQC v Minister for Immigration [2006] FMCA 1886 SZIQC v Minister for Immigration [2007] FCA 522 SZLLY v Minister for Immigration [2009] FCA 185

Applicant:

SZQKX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1478 of 2011

Judgment of:

Driver FM

Hearing date:

11 November 2011

Delivered at:

Sydney

Delivered on:

11 November 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Collins Minter Ellison

INTERLOCUTORY ORDERS

(1) The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1478 of 2011

SZQKX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 27 June 2011. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution essentially based upon the activities of his sister. The following statement of background facts relating to the applicant’s claims and the Tribunal’s decision on them is derived from the Minister’s submissions filed on 3 November 2011.
2. On 6 June 2010, the applicant arrived in Australia from China [court book, “CB” 2]. On 25 August 2010, the applicant applied to the Minister’s Department (the Department) for a Protection (Class XA) visa [CB 1–22]. Attached to the application was a seven page statement dated 20 August 2010 and copies of the applicant's passport pages [23–43].
3. On 15 October 2010, the applicant was invited to attend an interview with the Minister’s delegate on 16 November 2010 with the assistance of a Mandarin interpreter [CB 35–37]. The applicant attended that interview and provided additional documents in support of his application [CB 42–71].
4. On 13 January 2011, the Minister’s delegate made a decision to refuse the applicant's application for a visa as he did not satisfy the criteria in s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) [CB 75–87]. Also on 13 January 2011, the delegate prepared a letter to the applicant, advising him of the decision, and providing him with a copy of the delegate's decision record and notice that he could apply for review of the decision by the Tribunal [CB 72-74]. The letter was sent to the applicant's last known residential and postal address, being 2/28 King Street Ashfield NSW 2131 [CB 2, 72].
5. On 9 February 2011, the applicant applied to the Tribunal for review of the decision of the Minister [CB 88–91].
6. On 7 March 2011, the Tribunal invited the applicant to attend a hearing before it, on 27 April 2011, to give evidence and present arguments on issues relating to its review of the decision of the Minister [CB 101-102]. The letter was sent via registered post to the applicant's last known residential address, being Unit 2, 28 King Street Ashfield NSW 2131, on 8 March 2011 [CB 101].
7. On 27 April 2011, the applicant attended the hearing before the Tribunal with the assistance of a Mandarin interpreter [CB 110-111].
8. On 27 April 2011, the applicant was sent a copy of the audio CD from the hearing before the Tribunal[CB 121].
9. On 27 June 2011, the Tribunal affirmed the decision on review [CB 123-133]. The applicant was notified of the decision of the Tribunal by way of letter dated 28 June 2011 which was sent to the applicant via registered post on 29 June 2011 [CB 122].
10. The Tribunal found that the applicant was not a practising Christian and there would be no real chance he would face persecution if he returned to China for reasons of his own religious beliefs [CB 130, [65]].
11. The Tribunal found that the claims of the applicant's sister's participation in the underground church were not credible on the basis that:
    1. the applicant had departed and re-entered China on a number of occasions without any difficulty and continued to operate his business in Jiangsu when he returned to China in 2008; and
    2. the applicant's brother-in-law had not faced persecution as a result of the applicant's sister's alleged activities in the underground church [131, [66]].
12. Consequently, the Tribunal found that the documentary evidence of the applicant's detention on account of the applicant's sister's activities were not “genuine or reliable documents” [CB 131, [67]].
13. The Tribunal also found that there was no evidence the applicant was a person of interest to the Chinese authorities [CB 131, [71]] and that any fear of harm the applicant may have in relation to the demolition of his home was not for a Convention reason [CB 132, [78]].
14. Consequently, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations under the Refugee Convention [CB 132, [82]].
15. These proceedings began with a show cause application filed on 13 July 2011. There are two grounds in that application:
    • 1. Lack of procedure fairness.
    • 2. My application was not fairly assessed by RRT and DIAC.
16. The grounds are not particularised. In view of the extreme generality of the grounds advanced in the application, I provided the applicant with the opportunity to file and serve an amended application and listed the matter for a show cause hearing today. No amended application has been filed.
17. The applicant relies upon a short affidavit filed with his original application. I received that affidavit as a submission. In it the applicant asserts that he was persecuted by the Chinese Government due to his relatives’ religious belief and that he fears to return to China. He asserts that his claims are true.
18. I received as evidence the court book filed on 18 August 2011.
19. I invited oral submissions from the applicant today. He is concerned that he was not believed by the Tribunal. It is the outcome of the review before the Tribunal that gives rise to the applicant’s concern about unfairness. As I explained to the applicant, however, disagreement with the outcome of the review process does not carry with it any implication of procedural unfairness. It appears from the court book that the Tribunal followed the requirements of the procedural code to which the Tribunal is subject under the Migration Act. It appears that the applicant was provided with a real hearing opportunity and that the review process was a fair one.
20. There is nothing to support an allegation of an apprehension of bias.
    It does not appear that any elements or integers of the applicant’s claims were overlooked. The applicant told me from the bar table that he could obtain more information from China to support his claims. That, however, would not assist me in determining whether there is any arguable case of jurisdictional error on the part of the Tribunal. That is because I cannot review the merits of the Tribunal decision. Obviously, the Tribunal could not take into account information that was not before it at the time it made its decision.
21. The Minister has attempted in his submissions to traverse issues that might arise from the very general grounds in the application. I agree with and adopt those submissions.

Ground 1

22. Having regard to s.422B(1) of the Migration Act, the Tribunal’s obligation to afford procedural fairness to the applicant is determined generally by the obligations imposed on it by Division 4 of Part 7 of the Migration Act.
23. The Tribunal complied with the statutory procedural obligations imposed on it in the following way:
    1. the Tribunal advised the applicant that it had considered all the material before it relating to his application and was unable to make a favourable decision on that information alone [CB 101-102];
    2. the Tribunal afforded the applicant an opportunity to comment by inviting him to attend a hearing before it on 27 April 2011 in accordance with s.425 of the Migration Act [CB 101-102];
    100. in compliance with s.425A(1) of the Migration Act, the Tribunal gave notice of the day, time and place of the hearing [CB 101]; and
    4. the letter from the Tribunal stated, in accordance with s.425A(4) of the Migration Act, that the Tribunal may proceed to making a decision if the applicant failed to appear at the hearing listed on 27 April 2011 [CB 101].
24. There was no information of the kind with which s.424A of the Migration Act is concerned, in relation to which the Tribunal was required to provide particulars to the applicant: SZEZI v Minister for Immigration [2005] FCA 1195 at [11] and [29]-[30] per Allsop J; SZLLY v Minister for Immigration [2009] FCA 185 at [18] per Perram J; SZIQC v Minister for Immigration [2006] FMCA 1886 at [19] per Smith FM, upheld on appeal: SZIQC v Minister for Immigration [2007] FCA 522.
25. To the extent that it might be said that the Tribunal relied on the information contained in the applicant's protection visa application, in affirming the delegate's decision, the Tribunal was not required to give particulars of that information (or to explain its relevance or invite the applicant to comment on it), by virtue of s.424A(3) of the Migration Act. That provision states that s.424A does not apply to information, amongst other things, “that the applicant gave for the purpose of the application for review' or 'information that the applicant gave during the process that led to the decision that is under review” (namely, the delegate's decision): ss.424A(3)(b), (ba) of the Migration Act. Information provided by the applicant in his protection visa application and evidence given at the Tribunal hearing falls within this description.
26. The Tribunal was not required by s.424A of the Migration Act to provide the applicant with an opportunity to comment on possible adverse credibility findings which the Tribunal might make. In SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said, at [18]:
    • ...if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1) ...Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information":
      • ...does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gap, etcs ...
    • ...However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.

Ground 2

27. The applicant has failed to particularise the way in which the Tribunal failed to fairly assess his application for review. I have already found that the Tribunal complied with its procedural code. To the extent that the applicant seeks to challenge factual findings made by the Tribunal, this may invite merits review of the Tribunal’s decision, which is not a permissible ground of review: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 53-4 [195]- [197] per Gummow and Hayne JJ; Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2 per Brennan CJ, Toohey, McHugh and Gummow JJ, and at 291-2 per Kirby J.
28. To the extent the applicant claims the Minister failed to fairly assess his claims, the short answer is that the decision of its delegate was a “primary decision”. Under s.476(2)(a) of the Migration Act, the Court has no jurisdiction to review a primary decision.
29. I find that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. Accordingly, the application will be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I so order.
30. Costs should follow the event in this case. The Minister seeks scale costs of $3,123. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 21 November 2011