SZCVF v Minister for Immigration - [2007] FMCA 2131

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCVF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2131

MIGRATION – Review of decision of RRT – whether Tribunal complied with ss.424A and 425 of Migration Act 1958.

Migration Act 1958, ss.424A, 425

Applicant:

SZCVF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3030 of 2006

Judgment of:

Raphael FM

Hearing date:

17 December 2007

Date of last submission:

17 December 2007

Delivered at:

Sydney

Delivered on:

17 December 2007

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Mr J Mitchell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3030 of 2006

SZCVF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the Peoples Republic of China. She arrived in Australia on 23 April 2002 and applied to the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa on 23 August 2002. A delegate of the Minister refused to grant her a protection visa on 19 July 2002. The applicant sought review of the decision of the delegate from a Refugee Review Tribunal which affirmed the decision on 3 February 2004. The applicant sought review of the Tribunal's decision in this court and on 18 May 2006 the court set aside the decision and remitted the matter to the Tribunal to be determined according to law.
A further hearing was arranged which the applicant attended. She was represented by a migration agent. On 26 July 2006 the Tribunal sent to the applicant through her migration agent a letter pursuant to s.424A of the Migration Act 1958 (the “Act”). The letter was responded to by the migration agent on behalf of the applicant on 9 August. On 28 August 2006 the second Tribunal determined to affirm the decision under review and handed that decision down on 19 September.
Before the proceedings commenced the applicant sought an adjournment. She had, through a friend, written a letter to the court on 13 December 2007. She told the court that she had applied for legal assistance but had not received it. She said that she had received a letter from a solicitor but she gave it to her migration agent, the migration agent told her that she should not see the solicitor. She now wanted to see the solicitor and asked for the hearing to be adjourned.
I explained to the applicant that the provision of legal advice was a privilege not a right. I referred her to a letter that had been sent to her by this court which told her to contact the court if she had not heard from the legal adviser within three weeks of receiving the green book. The applicant responded to the effect that she had been in Brisbane but it seemed to me that the story of not being contacted by the solicitor is inconsistent with the story that she had taken a letter from the solicitor to the migration agent. In any event, I was of the view that as this matter had been set down for hearing at a call over before Registrar Lackenby on 30 November 2006 that the applicant attended and had the benefit of a Mandarin interpreter, no proper excuse had been given for the very lengthy delay in making a new claim to receive legal advice. I therefore declined to grant the adjournment.
The applicant's grounds for saying that she was a person to whom Australia owed protection obligations arose out of her membership of an underground church. The factual situation has been encapsulated by Mr Mitchell in his helpful written submissions from which the following quotation is extracted:
“She claimed that in 1995 her father and uncle were arrested whilst conducting a gathering of the underground church and that she was subjected to interrogation on three occasions. She claimed that her father was detained for half a year and her uncle was sent to a labour farm for one year. She continued her secret bible study and was employed in the factory where an underground church was supported by the factory owner who was a pious Christian. She distributed religious promotional materials and organised bible studies. She claimed this activity was discovered by PSB in October 1999 and the factory owner was arrested and sentenced to imprisonment for three years. The applicant claimed that she was detained from October 1999 to January 2000 and physically and mentally tortured. After her release she sought to have her marriage registered. The local government refused her registration and did not accept her de facto relationship. In 2001 she began to reorganise the underground church. She organised small meetings of five or six participants and obtained overseas religious materials which the group edited and then distributed through a secret network. In February 2002 members of her group were arrested by the PSB. She departed China, having obtained a passport. She subsequently learned that her church had been totally destroyed.”
The Tribunal questioned the applicant on the matters contained in her statements including evidence that she had given to the first Tribunal. During the course of the second Tribunal hearing two matters became of particular importance. The first related to the applicant's name.
The applicant came to Australia on a passport in one name but she claimed that she had been born with another name. She also told the Tribunal that she had been born on the day approximately eight years after the date on the passport that was also the date that was provided to the department in the protection visa application and the date that she had told the previous Tribunal. These matters were discussed with the applicant who provided an explanation that the Tribunal did not accept.
The second matter that caused the Tribunal concern as to the credibility of the applicant related to her claim that the underground church she belonged to was known as “The Shouters”. This connection with that notorious organisation had not been mentioned either in the PVA or to the first Tribunal. Once again, the applicant was questioned on the matter and provided an explanation but it was not accepted by the Tribunal.
The Tribunal then wrote to the applicant in a letter under s.424A in which these matters were referred to and it was explained in the letter that the information was relevant because she had not informed the previous Tribunal or the department about her true identity and the Tribunal was unable to establish her true identity and the fact that the information had not previously been supplied might indicate that she was not a witness of truth. In the s.424A letter the Tribunal also pointed out two other inconsistencies concerning the applicant's detention and her participation in religious activities by starting a secret network and recruitment on the internet.
In its findings and reasons the Tribunal makes reference to the discussions of the applicant at the hearing and her response to the s.424A letter. It rejected the applicant's explanations for the reasons given including the use of independent country information which had been discussed with the applicant at the hearing. The gravamen of this information was that particularly in the Fujian province from which she came there was a more tolerant approach to Christina activity than the applicant was prepared to concede. Whilst acknowledging that “The Shouters” movement was still one of concern the Tribunal took the view that general Christian observance would not be. As the Tribunal doubted that the applicant truly was a “Shouter” because of her failure to advert to this in her earlier evidence the Tribunal concluded that she would not be in any danger should she return to China and she would not be prevented from practising Christianity. These conclusions of the Tribunal are logical conclusions from the evidence available to it.
The application filed by the applicant alleges that the Tribunal failed to comply with its obligations under s.424A. This allegation is particularised by saying that a letter had been sent but the issues upon which the member has relied in her final decision was not included in her letter. One of the issues referred to was the presiding member's "poor understanding of the local church" or the information regarding The Shouters.
The information that the Tribunal utilised in relation to “The Shouters” was obtained from independent country information does not have to be referred to an applicant. It seems to me that whatever the Tribunal's understanding of “The Shouters” church may have been it became irrelevant when the Tribunal concluded that the applicant was not a member of that church because she had not told either the department or the first Tribunal of her membership. The explanation provided by the applicant for this failure, namely that the word "Shouters" was not used, failed to convince the Tribunal and to seek a review of this court on the basis that the Tribunal was wrong not to accept that explanation is to seek impermissible merits review.
The second matter raised by the applicant was that the presiding member failed to consider her claims properly and fairly and in its particulars she sets out to attack the Tribunal's knowledge of “The Shouters” church. It is too late at this stage to argue with the Tribunal about its interpretation of the independent country information.
Finally, the applicant submits that the presiding member failed to comply with her obligations under s.425 of the Act because the member never made it clear what the issues were in relation to her application and she failed to ensure that the applicant understood what particulars were of those pieces of information she intended to use as a reason. The applicant complained that the Tribunal did not provide her with any real chance to comment against negative issues.
A reading of the Tribunal's grounds and reasons for decision indicates quite a contrary procedure. It indicates that the Tribunal took up with the applicant those matters upon which it had most serious concern and if it was not clear from what was said at the hearing it would have been abundantly clear upon receipt of the 424A letter what the matters in issue were.
The applicant was represented by a migration agency against whom I have personally received no criticism, which after some six years undertaking this work would tend to indicate that it is being run in a satisfactory manner. I have no reason to doubt that the s.424A letter was explained to the applicant as was its importance. The applicant provided the agent with the responses and there was every chance given to the applicant to comment upon negative issues. She did comment upon them and the Tribunal then did what it was commanded to do, namely make a decision. In thus acting the Tribunal fulfilled its obligations under the Act and did not to my mind fall into any jurisdictional error. This application must be dismissed. The application must pay the First Respondent’s costs which I assess in the sum of $4000.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 20 December 2007