SZEKP v Minister for Immigration - [2005] FMCA 703

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEKP v MINISTER FOR IMMIGRATION

[2005] FMCA 703

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of China – claim of well-founded fear of persecution for reason of religion – allegation of denial of natural justice – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 475A

Re Minister for Immigration & Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZEKP

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2852 of 2004

Judgment of:

Scarlett FM

Hearing date:

13 May 2005

Date of Last Submission:

13 May 2005

Delivered at:

Sydney

Delivered on:

13 May 2005

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondent:

Stella Koya
Phillips Fox

ORDERS

The application is dismissed.
That the Applicant is to pay the Respondent’s costs fixed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2852 of 2004

SZEKP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 29 July 2004. It was handed down on 19 August 2004. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is a citizen of the Peoples Republic of China. He arrived in Australia on 15 April 2004. On 27 April 2004 he lodged an application for a protection visa. In that application he claimed a well founded fear of persecution. This fear, he said, was based on the fact that he was a member of the Christian religion and had been persecuted because he was the member of an underground church. He said that he had been detained for two months and subjected to ill treatment by the police.
On 30 April 2004 the delegate of the Minister refused his application for a protection visa. On 28 May 2004 the applicant applied for a review of that decision by the Refugee Review Tribunal. The Tribunal wrote to the applicant offering him the opportunity of attending a hearing before the Tribunal. The hearing was scheduled for Thursday, 22 July 2004. In the Tribunal's letter which was dated on

17 June 2004, the Tribunal said that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in the applicant's favour on this information alone. This letter and the holding of a hearing complies with the requirements of

s.425 of the Migration Act. Very wisely, the applicant attended the hearing. He gave evidence to the Tribunal with the assistance of an interpreter in the Mandarin language. He has attended Court today. Again, he has had the assistance of an interpreter. He has told the Court that he neither reads nor speaks English.
The Tribunal did not hand down a decision in favour of the applicant. The Tribunal noted the applicant's written evidence that he was a Christian who had been introduced to Christianity by his department manager in June 2000. The Tribunal noted that he went to an underground church. The Tribunal also noted that on 13 November 2002 the police broke into the church when a service was being held. The police took the whole congregation and detained them for two months. The congregation members were beaten by the police. The members have not been able to worship in the church since then. The applicant gave oral evidence about that experience.
The Tribunal noted that the applicant's review application made no new claims and restates in brief form the claims made in his primary application. The applicant told the Tribunal about the events in the church on 13 November 2002. He told the Tribunal about a meeting of church members in January 2004. Again, the police broke up the meeting. The applicant and other people were again arrested and taken to the police station. The applicant was not charged on that occasion but he made the decision to leave China and come to Australia.

His supervisor at work was in a similar position.
The Tribunal asked the applicant some questions and the applicant replied. The Tribunal member told the applicant that he could not accept that the applicant was a Christian. His description of his church’s activities was not credible and it was not credible that he could have been a Christian for four years as claimed, and not know anything about the two most important Christian festivals and have had no contact with the Bible. This is set out on page 60 of the Court Book.
The Tribunal gave its findings and reasons for those findings. The Tribunal found that the applicant was a citizen of China. The Tribunal was unable to accept the applicant's claims either as to his religion or to the events of persecution which occurred between 2002 and early 2004. The Tribunal said it was just not believable that a person could be a member of a Christian church but no nothing at all about Christianity.
The Tribunal said that the efforts made by the applicant to make contact with a Christian church in Sydney were, at best, desultory.

The Tribunal did not believe the applicant's statement that he had asked unsuccessfully for a Chinese language church in Chinatown.
The Tribunal did not accept the applicant was a Christian or was a member of a Christian group of any kind. The Tribunal did not accept that the applicant was present at religious meetings in China which were broken up by police. The Tribunal did not accept that there was real chance that the applicant would suffer harm if he were returned to China and the Tribunal declared it could not be satisfied that the applicant had a well founded fear of persecution for a Convention reason.
The applicant is not represented by a lawyer. He has had some legal advice under the RRT legal advice scheme. He says that the lawyer told him that the Tribunal did not believe his story. That appears to be the case.
The applicant filed an amended application on 30 November 2004. He set out three grounds for review of the RRT decision. Those grounds are as follows:
1) The respondents denied natural justice to me by failing to consider the context in which I was and will be persecuted in China, including economic hardship which threatens my capacity to survive.
2) The respondents only considered the evidence that is not in my favour and failed to consider the evidence which is in my favour.
3) The respondents denied high degree of possibility of persecution if I return to China.
The lawyers for the respondent commenced non-compliance proceedings against the applicant. In reply to those proceedings the applicant filed a document headed Further Statement. He repeated the claims made in his amended application. He also said that the respondent, meaning the Refugee Review Tribunal, did not comply with s.425(2)(a) of the Migration Act. I have already looked at that question and it appears that the quote from the Migration Act was taken out of context. The evidence before me shows me that the Tribunal did comply with s.425 of the Migration Act. The Tribunal was not satisfied that it could make a decision in the applicant's favour based just on the information before it. So the Tribunal invited the applicant to attend a hearing. The applicant attended a hearing and gave evidence with the aid of an interpreter. I find that s.425 has been complied with.
The balance of the applicant's further statement relates almost entirely to the non-compliance proceedings and the applicant's difficulty in trying to prepare his documents without the aid of a lawyer.
The applicant attended Court today and I have heard oral submissions from him. I have asked him a number of questions and he has done his best to answer them. I have also read the respondent's outline of submissions prepared by Ms Koya, solicitor from the solicitors for the respondent. The bulk of the applicant's application for review relates to his claim for, in effect, a merits review of the Tribunal decision.

He takes the view that the Tribunal put too much weight on negative information about him and little or no weight on information that supported his case. He and his friend who prepared his documentation for him, were apparently unaware that findings of fact are a matter for the decision maker, not the Court conducting judicial review.
The applicant has claimed a denial of natural justice. It is not uncommon for unrepresented applicants to make such a claim.

There appears to be difficulty in distinguishing the term natural justice from the term justice. In this case, when the applicant says that he was denied natural justice he does not mean that the Tribunal heard his application in an unjust way. What he submits is that the Tribunal made factual errors in respect of his various claims and that the Tribunal did not decide the application the way he believes the Tribunal should have done.
I should make it clear that the Court does not have the power to review factual matters and substitute its own view of the facts for that of the Tribunal. It appears to me that there was evidence before the Tribunal sufficient to allow it to make the findings that it did and it is not permissible for the Court to say that the Court would have decided the matter differently on those facts. I cannot see any example of denial of natural justice in its proper sense or denial of procedural fairness.

The evidence shows that the applicant was accorded procedural fairness and he took advantage of the opportunity given to him to attend the Tribunal hearing and give oral evidence. There is no evidence that the Tribunal considered matters that were not known to the applicant and in short, there is no evidence of a denial of natural justice. There is no evidence that the applicant was not accorded procedural fairness.
The applicant did refer to economic hardship and did complain today about the Tribunal not asking him about unfair treatment in China as opposed to persecution for his Christian beliefs. If it were the case that the Tribunal had omitted to consider a part of the applicant's case then it is clear that there would have been a jurisdictional error. I took the time to adjourn the proceedings so that I could reread both the application for a protection visa and the application for review of the delegate's decision. In neither case could I find any reference to any other claim except the primary claim of being tortured and detained in China when attending a church service. In short, I am satisfied that there is no reviewable error. There is no error going to jurisdiction and the application will be dismissed.
In a case like this, where a party is unsuccessful the Court normally makes an order that they pay the other side's legal costs. In my view, this is an appropriate matter for an order for costs. The amount sought, being a lump sum of $3000, appears to me to be well within the range set by the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 23 May 2005