AZABT v Minister for Immigration

[2012] FMCA 196

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZABT v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 196

MIGRATION – Application for judicial review – Application dismissed with costs.

Migration Act 1958 (Cth)

Applicant: AZABT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 251 of 2011

Judgment of: Simpson FM

Hearing date: 16 February 2012

Date of Last Submission: 16 February 2012

Delivered at: Adelaide

Delivered on: 16 February 2012

Settled on: 23 March 2012

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application filed on 23 September 2011 be dismissed.

2. The applicant do pay the first respondent’s costs fixed in the sum of SIX THOUSAND, TWO HUNDRED AND FORTY DOLLARS ($6,240).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 251 of 2011

AZABT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX-TEMPORE JUDGMENT

1. I have before me an application for judicial review of a decision made by the Refugee Review Tribunal on 29 August 2011.  The applicant, who claims to be, and I have no doubt is, a citizen of China, arrived in Australia on 12 February 2007 and applied to the Department of Immigration and Citizenship for a visa on 18 March 2010.  The delegate decided to refuse to grant the visa on 29 June 2010 and notified the applicant of that decision.  The delegate refused the visa application on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugee Convention. 

2. The applicant then sought a review of the delegate’s decision before the Refugee Review Tribunal.  The Tribunal affirmed the decision on 24 September 2010.  The applicant then sought a review of the Tribunal’s decision by the Federal Magistrates Court on 27 April 2011.  The Court, by consent, set aside the decision and remitted the matter to the Tribunal to be determined in accordance with the law.  The Tribunal heard the matter and made its decision on 29 August 2011.  The Tribunal affirmed the decision not to grant the application of a protection visa.  It is the decision of 29 August 2011 that is the subject of this review. 

3. The applicant in these proceedings has been assisted in Court by an interpreter.  The applicant does not have legal representation here in Court, however, at an earlier point in time, the applicant has had the assistance of a lawyer who provided the applicant with legal assistance in relation to the proceedings.  I make due allowance for the fact that the applicant does not speak English and has no legal representation today. 

4. The matter came before Registrar Christie on 1 November 2011.  The applicant was without legal representation before Registrar Christie.  Registrar Christie made a number of orders.  First, an order was made for the filing and service of a court book.  That order was complied with and I established with the applicant here in court that he received a copy of that court book. 

5. Registrar Christie also ordered that the applicant have leave to file and serve any amended application by 9 December 2011.  The applicant decided not to file an amended application even though the application that was originally filed was in very general terms.  I found it surprising that an amended application was not filed as, since the filing of the original application the applicant had had legal advice. 

6. A further order was made by Registrar Christie on 1 November 2011 namely, that the applicant have leave to file and serve such further material, including the transcript of proceedings before the second respondent, that he may rely upon at hearing by 9 December 2011.  The applicant declined to file any further material by 9 December or at all.  In Court the applicant said in his submissions that he had wanted to get the transcript.  He nevertheless failed to make any genuine attempt to do so.  I questioned the applicant as to what use he wished to make of the transcript if it were here and decided that, in light of the submissions, (or perhaps I should put it more bluntly by saying, lack of submissions) that he wished to put to the Court, the transcript would not have been of assistance to him on this application. 

7. Registrar Christie, on 1 November 2011, listed the matter for hearing before me at 10 am today.  Registrar Christie also ordered that each of the parties, that is, the applicant and the first respondent, file outlines of submissions.  The applicant was required to file and serve an outline of submission 10 clear business days prior to the hearing.  That order was not complied with within 10 days or at all.  The Court received a detailed Outline of Submissions from the first respondent which has proved helpful.

8. I established from the applicant in Court this morning that he had received a copy of the respondent’s Outline of Submissions and that an interpreter had read them to him. 

9. Notwithstanding the above events, the applicant came to court today without any clear idea about the basis upon which, he says, the application should be allowed.  It is a concern to me that the applicant, if he was serious about this litigation, nevertheless did not take the trouble to establish at the very least what it is that he was critical of in relation to this latest decision of the Refugee Review Tribunal. 

10. No proper submissions have been put to me by the applicant although he indicated that he was unhappy that they said he was not a genuine Christian.  I have had the opportunity of reading the decision of the Tribunal and the findings of fact, in my view, are facts that were open to the Tribunal to make. 

11. No substantive attempt has been made by the applicant to put forward some basis for the application. I see no need to closely examine in these reasons all that is contained in the Minister’s outline of submissions. I have, however, taken into account the submissions that were put by the Minister and I am satisfied that what is contained in the outlines of submissions is correct. Some emphasis was placed by counsel for the first respondent on an aspect of the Tribunal’s reasons. The question of the Tribunal saying that the applicant would continue to practise his faith of Christianity in a discreet, low way and counsel for the first respondent was a bit concerned that the use of those words might result in the legal matters dealt with in the case of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. There was concern that the principle that was enunciated in that case might apply but I do not particularly see that I need to deal with that. The comment that the comment made in paragraph 26 of the respondent’s Outline of Submissions I am sure is correct, namely, that the Tribunal did not find, as the Tribunal had found in S395, that the applicant could or should modify his behaviour in order to avoid being persecuted. Rather, the Tribunal in the current matter indicated that the applicant could continue to behave as he had previously and that was to practise his religion discreetly. It was submitted no behalf of the first respondent that, in that way, the case of S395 was distinguishable.

12. The Tribunal made findings in paragraph 73 of their reasons that make it very difficult for the applicant to succeed and give me good cause for not allowing the application.  In paragraph 73 the Tribunal found that there is not a real chance that the applicant would suffer serious harm in the foreseeable future for his religious beliefs and his limited practice as a Christian should he return to the PRC, the People’s Republic of China.

13. The Tribunal also made this finding in paragraph 77 of their reasons:

    The Tribunal finds there is not a real chance the applicant would suffer serious harm for his association with his parents, that is, his membership of a particular social group comprising his family, in the foreseeable future should he return to the PRC. 

14. For those reasons I am of the view that the application should be dismissed with costs. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Simpson FM

Date:  23 March 2012