SZBYM v Minister for Immigration
[2005] FMCA 693
•19 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBYM v MINISTER FOR IMMIGRATION | [2005] FMCA 693 |
| MIGRATION – Review of decision of RRT – whether the Tribunal came to a conclusion on evidence where it could not come to a state of satisfaction – whether this constituted jurisdictional error – whether the decision of the Tribunal indicates bias. |
| Federal Magistrates Court Rules 2001 |
| NARE v Ministerfor Immigration and Indigenous Affairs [2004] FCA 554 |
| Applicant: | SZBYM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2518 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 19 May 2005 |
| Date of Last Submission: | 19 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2005 |
REPRESENTATION
| Counsel for the Respondent: | J.A.C. Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs assessed in the sum of $4000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2518 of 2003
| SZBYM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. He arrived in Australia on 29 June 2002. On 16 September 2002, he lodged an application for a protection (class XA visa) with the Department of Immigration and Multicultural and Indigenous Affairs. A delegate of the Minister refused to grant him a protection visa on 29 October 2002. On
3 December 2002, the applicant applied for a review of that decision. On 2 September 2003, the Refugee Review Tribunal wrote to the applicant, stating that it had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to a hearing on 30 September 2003. On 25 September 2003, the Tribunal received from the applicant [CB69] a response to hearing invitation form which indicated that he did not wish to go to a hearing. The Tribunal then considered the matter on the papers and on 26 September 2003 determined to affirm the decision not to grant a protection visa. The decision was handed down on 22 October 2003.
The applicant's claim to have a well founded fear of persecution for the convention reason of political opinion was articulated in his response to the questions in the application form that are found at [CB25-27]. He claimed that his family and, in particular, his parents and grandparents had suffered under the previous regimes in China, his grandfather having been classified as a landlord. He stated that he had taken part in a memorial activity for the Tiananmen Square massacre and that he was frightened that he would be persecuted if he returned to the country. He did not agree with the current policies of the Government of the People's Republic of China.
The Tribunal considered the matters put by the applicant at [CB85] it says:
“In the review application, the applicant provided a brief statement essentially repeating his broad claims. He stated that he will harmed by the PRC authorities due to his political opinion, but he did not describe his political opinion, exactly how and when he expressed his opinion or if he intended to express it in future. The applicant claimed that previously his relatives were harmed by the government and he anticipated similar treatment in the future.”
The Tribunal went on to consider independent country information concerning the political situation in China before coming to its findings and reasons at [CB87]. The reasons of the Tribunal are short:
“The applicant presented his claims poorly, despite having assistance from a Migration Agent. He made claims regarding his political opinion and family background, but did not provide meaningful details regarding these matters and the Tribunal cannot determine if the applicant was ever a person of concern to the PRC authorities due to his political opinion or any other reason. Nevertheless, the Tribunal has considered the applicant's broad claim that he will be subjected to persecution by the PRC authorities due to his political opinion and the political opinion attributed to him due to his family background. It was guided by the Handbook on Procedures and Criteria for Determining Refugee Status, (United Nations High Commissioner for Refugees, Geneva, 1992, para 80), which states that holding "political opinions different from those of the government is not, in itself, a ground for claiming refugee status" and that "an applicant must show that he has a fear of persecution for holding such opinions". “
The Tribunal indicated that it was unable to understand precisely how the applicant expressed his political opinions. It noted that he had been put on notice that the Tribunal was not satisfied by the evidence provided in support of his application and yet he provided no further information and he had not given the Tribunal an opportunity to explore his claims with him at a hearing. At [CB88] the Tribunal says:
“Many questions regarding his previous and future circumstances remained unanswered. In the absence of further information and in view of the above findings, the Tribunal does not accept that the applicant has a well founded fear of persecution in China for reasons of political opinion or any other convention reason.”
On 23 November 2003, the applicant filed an application in this court seeking review of that decision. He stated:
“There is error with the way the officer considered my application. I believe that the officer considered my application with bias.”
Following a directions hearing, which took place on 14 April 2004, the applicant filed a further short submission. He claimed that the Tribunal had made a jurisdictional error when it said that it was not able to determine precisely how the applicant expressed his political opinion in China. It indicated that the applicant had provided the Tribunal with sufficient information to indicate that he did actively express views against the government and that the Tribunal had wrongly assumed that he did not do so or that he would not do so in the foreseeable future. He argued that the Tribunal could not justify that statement with any material or evidence. He felt that that indicated bias. When he came before me this morning, the applicant repeated his assertion that the Tribunal had been given enough information and that armed with that information it should have given him a positive result. He asked the court to make a change to his application.
In NARE v Ministerfor Immigration and Indigenous Affairs [2004] FCA 554 Allsop J made one of his many pronouncements about the role of the courts in these matters. His Honour said at [10]:
“What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this court does not, and cannot, involve simple refinding of facts found by the Tribunal. Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully. For instance, asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 (CTH) ("the Act") says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the court's job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to portray a failure to undertake properly the required task.”
The Migration Act requires the Tribunal to come to a conclusion whether or not it is able to reach a state of satisfaction concerning the claims made by an applicant. If it reaches that state of satisfaction, then it must grant a visa and if it does not reach the state of satisfaction, it must decline to do so. A Tribunal comes to a state of satisfaction or non satisfaction based upon the evidence that it is given. If the evidence is insufficient, then it would inevitably come to a state of dissatisfaction. This is what occurred here. The applicant provided a certain amount of evidence but not enough to satisfy the Tribunal. The Tribunal offered him an opportunity to explain himself to it, but he did not take it. The applicant cannot come to this court and complain when he has only himself to blame for not providing the Tribunal with the necessary evidence.
There is nothing in the decision of this Tribunal which would indicate that it came to its conclusions by way of jurisdictional error. In the circumstances, I must dismiss the application, which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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