SZAQI v Minister for Immigration
[2004] FMCA 413
•24 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAQI v MINISTER FOR IMMIGRATION | [2004] FMCA 413 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – allegations by applicant against her former migration agent – asserted procedural unfairness – applicant found by RRT to lack credibility – no reviewable error found – application dismissed. |
| Applicant: | SZAQI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ875 of 2003 |
| Delivered on: | 24 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 24 June 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
The applicant is to pay the setting down fee of $327 within 14 days or obtain a waiver.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ875 of 2003
| SZAQI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 1 April 2003 and handed down on 23 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had made claims of religious persecution in China. The background facts and circumstances are set out in paragraphs 2 through to 9 of written submissions prepared on behalf of the Minister by Mr Lloyd. I adopt those paragraphs, with appropriate deletions to protect the identity of the applicant, for the purposes of this judgment:
The applicant, a citizen of China, arrived in Australia on 2 March 2002 (court book, page 73.1).
On 28 March 2002, the applicant lodged an application for a protection visa, with the assistance of a migration agent, Ms Orchid Sit (court book, pages 1-26).
By letter dated 6 May 2002, the applicant was invited to attend an interview with a departmental officer to clarify a range of matters particularised in the letter (court book, pages 27-29). There was no response from the applicant or her agent (court book, page 52.8).
On 21 May 2002, a delegate of the respondent refused the application (court book, pages 47-53).
On 20 June 2002, the RRT received an application for review on behalf of the applicant (court book, pages 54-57).
On 20 March 2003, the applicant attended a hearing before the RRT. At that hearing, she made a number of claims that were not consistent with the information provided in her original application (court book, page 79.5). The hearing was adjourned.
On 21 March 2003, an officer of the RRT contacted Ms Sit who was not inclined to attend a hearing of the RRT (court book, page 65). However, she did do so on 26 March 2003. It would appear that on that date the agent gave evidence that was not consistent with the applicant’s evidence (court book, page 79). The applicant claimed that Ms Sit was lying in her evidence (court book, page 79.9).
The RRT handed down its decision on 23 April 2003. It affirmed the decision under review. It made the following findings:
a)It accepted that the applicant was a citizen of China and that her real name is different from the name her visa application (and her present application) was commenced in.
b)The RRT was not satisfied that her other claims were credible (court book, page 81.1).
c)The applicant’s evidence about her involvement in the smuggling of bibles was inconsistent over time and was not accepted as credible (in this respect the evidence of Ms Sit was preferred to that of the applicant) (court book, page 82.4).
d)The applicant’s claims that her sister was in prison and her parents were in hiding was not accepted. The RRT did not accept as plausible the reason proffered by the applicant in not making these claims in her original application (court book, page 82.7).
e)Given that her evidence about her involvement in the Shouters church was inconsistent with that of an elder of that church (who suggested that the applicant had become a regular member only a month before the RRT hearing), the RRT was not satisfied that she was a committed member of the church.
f)The RRT was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The applicant proceeds on the basis of her application filed on 20 May 2003. She has not filed anything else in support of her application. The grounds of the application are set out in it and are five in number. As I read those grounds, they constitute an attack upon the merits of the RRT decision. I invited the applicant to make oral submissions to me so that I could better understand if she was raising any real issue about the jurisdictional validity of a decision of the RRT. The applicant raised three issues.
First, the applicant complains that the RRT based its decision upon mistaken material. The RRT found that there were substantial inconsistencies between what the applicant told the RRT at hearing and what she had earlier submitted in writing. In order to attempt to resolve those inconsistencies, the presiding member asked the applicant to explain them. The applicant's explanation placed the blame for earlier incorrect statements upon her migration agent. The RRT decided to adjourn the hearing and reconvene with the migration agent present. The migration agent gave evidence at the adjourned hearing. The migration agent's evidence was essentially that the earlier written material had been submitted on the basis of what the applicant had told the migration agent. The RRT accepted that evidence from the migration agent.
The applicant submits to me that this approach taken by the RRT was wrong. She submits that her migration agent was unqualified and allegedly incompetent or worse. She states that the registration of the migration agent has been cancelled. Mr Lloyd told me that his inquiries indicate that the migration agent is no longer registered but does not appear on a list of those whose registration has been cancelled.
In my view, the matters advanced by the applicant do not assist her in these proceedings. It was up to the RRT to determine whether they preferred the evidence of the applicant or the migration agent.
The RRT accepted that there may have been false information in the application for a protection visa. In particular, the applicant had given a false name. The RRT did not accept that the false information was given on some independent basis by the migration agent. If the migration agent was complicit with the applicant in the provision of false information, that would reflect adversely on both of them. The presiding member had serious difficulties with the applicant's claims quite apart from the issue of her identity. On my reading of the RRT decision, the claims as presented by the applicant were hopelessly inconsistent and unreliable. The decision made by the RRT turned upon the credibility of the applicant and I think properly so. I see no legal error in the approach taken by the RRT.
The second matter raised orally by the applicant concerned her request for more time to produce evidence from another witness. The applicant told me that she had requested more time to bring another witness to give evidence to the RRT. That request was refused by the RRT. This appears correct from the decision record (court book, page 80). The issue is one of procedural fairness. Whether procedural fairness reasonably requires that an adjournment be granted to permit an applicant to bring additional evidence will depend upon the circumstances.
In the circumstances of this matter, the applicant had had many months to prepare for the RRT hearing. The hearing had been adjourned which gave the applicant a further opportunity to get her story straight. On the basis of the material before the RRT the presiding member was left with a very adverse impression of the applicant's credibility. In the circumstances, in my view, the presiding member reasonably concluded that it was unnecessary to grant the applicant's request for an adjournment. I find that procedural fairness did not require that an adjournment be granted.
The final matter raised by the applicant appears to be a claim that the RRT did not understand or apply the correct consideration of her need for protection. She did not elaborate upon this claim and there is nothing in the evidence before me to support it. I reject that assertion.
For completeness, I agree with and adopt paragraphs 10 to 13 of Mr Lloyd's written submissions in respect of the application for judicial review:
The first two grounds of review concern the applicant’s name. They appear to fail to appreciate that the RRT accepted that the name initially used by the applicant is not her true name. There is no substance in them.
The fourth and fifth grounds appear to contend that the RRT did not adequately investigate her claims. These grounds misapprehend the role of the RRT. It is not part of its role to make the applicant’s case for her. Its role is to consider the material proffered by an applicant and any other information it chooses to get and make a decision on that basis. It is under no general obligation to make inquiries.
In any event, in this case, the RRT asked for a copy of the applicant’s passport which she said was lost. The RRT adjourned the hearing to investigate her claims that her migration agent had not filled in her original application form correctly. The RRT arranged for Ms Sit to attend and give evidence and gave the applicant an opportunity to address that evidence. There is no basis for criticism of the inquiries made by the RRT in the present case.
Finally, the applicant complains because the RRT believed her agent’s evidence on one point rather than her own. It was a matter for the RRT who to believe and how much weight to give to the evidence of each witness. No jurisdictional error is revealed.
There is no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision. I must dismiss the application.
On the question of costs, the applicant having been wholly unsuccessful, costs should follow the event. Mr Lloyd submits that there is nothing out of the ordinary in this case. I agree that the matter is a routine one calling for an order for costs appropriate in a routine case. The applicant did not wish to make any submissions on costs. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000. I also note that the applicant has not paid the setting down fee of $327 payable prior to today's hearing. I will order that the applicant pay the setting down fee of $327 within 14 days of today's date or obtain a waiver.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 29 June 2004
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