SZCIP v Minister for Immigration
[2005] FMCA 1421
•29 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCIP v MINISTER FOR IMMIGRATION | [2005] FMCA 1421 |
| MIGRATION – Review of decision of RRT – where the Tribunal found that the applicant’s claims of persecution were inconsistent – where the Tribunal made a late application for a protection visa – where the Tribunal found the application lacking in credibility – whether the Tribunal failed to grant the applicant the opportunity to comment upon independent country information – whether the relevant country information fell within the s.424A(3) exception. |
| Migration Act 1958, ss.91R(3), 424A(3) Federal Magistrates Court Rules 2001 |
| NARE v Minister for Immigration [2004] FCA 554 |
| Applicant: | SZCIP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2919 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 29 August 2005 |
| Date of Last Submission: | 29 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2005 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr R Beech-Jones |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2919 of 2003
| SZCIP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the Peoples Republic of China. She arrived in Australia on 20 May 2001. On 2 September 2002 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 4 October 2002 a delegate of the Minister refused to grant a protection visa and on 22 October 2002 the applicant applied for review of that decision.
The applicant attended a hearing before the Tribunal where she was represented by a migration agent. On 12 November 2003 the Tribunal determined to affirm the decision not to grant a protection visa.
It handed down that decision on 4 December 2003.
The factual matrix within which the applicant seeks to come within the convention definition of a refugee is that whilst living in her home in Qingdao City, she made a complaint concerning the death of her father and made allegations of professional negligence against the hospital. Her concern about the manner in which she was treated by the authorities in relation to this disturbing incident caused her to become associated with a group which she says called itself The Freedom & Democracy Party. She was friendly with a person she claims rang the Qingdao Branch of that party with her boyfriend. The applicant provided funds and took an active part in the party's distribution of anti-government information.
The applicant also made claims to have a fear of persecution for her religious beliefs. She claims she joined a church which was associated or was part of the Shouters Movement in 1996. She claimed that when she came to Australia she immediately joined an Australian branch of this group and has been an active member. She fears to return to China because of the combined effects of these two forms of dissidence.
The Tribunal considered the claims and discussed them with her in some detail. It noted that the applicant had not made any claims about her adherence to Christianity in her original application and, in particular, in the statement annexed found between [CB 17] and [CB 20]. It took the view that the applicant's knowledge of the Shouters Movement was slight. There were inconsistencies in her statements concerning her relationship with the organisation and it felt that she was unable to properly describe the ideals of her church.
The Tribunal noted that there were inconsistencies between her explanations about the church and independent country information. The Tribunal considered membership of the church in Australia and came to the finding that it was unable to accept that her interest and conversion to Christianity was for any purpose other than to provide herself with a profile that would enhance her claims to be a refugee. The Tribunal applied the provisions of s.91R(3) to the applicant's claims in relation to her activities in Australia.
The applicant made a late application for a protection visa. She gave a detailed explanation of this to the Tribunal. The explanation was not accepted. This was a matter which went clearly to the applicant's credibility and that is a matter which the Tribunal is entitled to make findings upon. The Tribunal also used independent country information to make findings about the interests which the Chinese authorities may have had in the applicant.
The applicant claims that the Tribunal fell into jurisdictional error by not permitting her sufficient time to explain her situation. Apart from this assertion she has provided no evidence by way of transcript or tape but it seems to me fairly clear from the decision itself that the Tribunal did listen carefully to all the matters which she raised. The Tribunal also raised with her all those matters upon which it had concerns and which might have and eventually did lead to the Tribunal's views about credibility and the weight of her claims. The applicant spoke at length today. Most of what she said had already been noted by the Tribunal. She sought to explain those matters upon which the Tribunal found against her. That is not the function of this court to correct mistakes of fact or provide merits review of a Tribunal decision.
The applicant also complained that she was not given an opportunity to comment upon the independent country information. My reading of the Tribunal's decision would suggest that she was given such an opportunity but, in any event, the country information she refers to concerning the situation for the Shouters Church in China, and the procedures for living in the PRC, are matters which clearly fall within the exception provided by s.424A(3) of the Migration Act 1958 (the “Act”).
In his helpful written submissions Mr Beech-Jones goes through each of the subparagraphs contained in the applicant's application and deals with each of her allegations of the existence of jurisdictional error. To the extent that I have not already dealt with them, I adopt what he has had to say in those written submissions which will be kept with the papers.
As is common in cases of this nature the Tribunal did not argue that if the applicant had the political profile and religious affiliations which she claimed that life would not be difficult if she returned, rather it came to the view that she did not hold those political convictions nor did she have within China prior to her leaving the religious affiliation as she claimed. Those are findings of fact with which this court cannot intervene. They are based upon evidence given by the applicant to the Tribunal and an assessment of the weight and veracity of that evidence. It is well that I encapsulate, for the purposes of the applicant, the views which I expressed during the course of her hearing and they have been explained by Allsop J in NARE v Minister for Immigration [2004] FCA 554 on the following manner:
“[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 re-finding 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 betray a failure to undertake properly the required task. This is why it was not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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