SZEQY v Minister for Immigration

Case •

[2007] FMCA 1600

•

10 September 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEQY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1600
MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa. – applicant is a citizen of China  claiming fear of persecution for reason of religion – no jurisdictional error.
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424A, 425
Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547
 ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SBBS v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2002) 194 ALR 749
Applicant: SZEQY
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3013 of 2006
Judgment of: Scarlett FM
Hearing date: 10 September 2007
Date of Last Submission: 10 September 2007
Delivered at: Sydney
Delivered on: 10 September 2007

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Mitchell
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Citizenship.

  2. The Application is dismissed. 

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $4,850.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3013 of 2006

SZEQY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant is a citizen of China. He asks the Court to make a declaration that the decision made by the Refugee Review Tribunal handed down on 19th September 2006 refusing him a protection visa on the basis of his religious belief should be declared invalid.  He asks the Court to set the decision aside and return his application to the Refugee Review Tribunal for determination according to law.

Grounds of Review

  1. He claims that the Tribunal fell into error in two ways:  first, that there was an error of law in the Tribunal's decision constituting a jurisdictional error; second, there was a procedural error in the Tribunal's decision constituting absence of natural justice. 

Background

  1. The background to this matter is that the Applicant arrived in Australia from China on 4th April 2004.  He applied for a Protection (Class XA) visa on 14th April 2004, but it was refused on 22nd April in that year.  The Applicant then applied to the Refugee Review Tribunal for a review of that decision.  On 14th September 2004, the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa.  So the Applicant then sought judicial review of that decision.

  2. That application was successful and on 21st April 2006 in the Federal Court Jacobson J made orders by consent that the Applicant's appeal be allowed and that there should be an order in the nature of certiorari to quash the Tribunal decision and an order in the nature of mandamus requiring the Tribunal to review the delegate's decision according to law. 

Application for Review by the Refugee Review Tribunal

  1. The Tribunal wrote to the Applicant on 23rd May 2006 care of his Migration Agent, advising that the matter had been returned to the Tribunal.  On 30th May the Tribunal invited the Applicant to attend the hearing to take place on 1st August. The Applicant attended that hearing and gave evidence with the assistance of an interpreter in the Mandarin language. 

  2. The Applicant reiterated his claim that he feared persecution by the authorities in China because of his special role in the underground church. He gave evidence that he became involved with an underground Christian church in August 1998, and in 2000 the Applicant claimed to have been questioned by the Public Security Bureau on three occasions. One of his associates, however, was sentenced to imprisonment for seven years. 

  3. The Applicant claimed to have conducted his religion in secret from 2000 through to 2004, but in March of 2004 a number of people were arrested and the Applicant was ticked off when the PSB was conducting investigations. The Applicant obtained a passport with an Australian visa on 29th March and left China for Australia. 

  4. The Tribunal Member asked the Applicant a number of questions about his involvement with the underground church and challenged on some of the details of this case. After the hearing, the Tribunal wrote to the Applicant under provisions of s.424A of the Migration Act. That letter was headed Invitation to Comment on Information and was dated 10th August 2006.  The letter told the Applicant that the Tribunal had information that would, subject to any comment that he might make, give a reason or part of the reason for deciding that he was not entitled to a protection visa. 

  5. The letter then set out in six bullet points a number of pieces of information including items of evidence which the Applicant gave to the first Tribunal here. The Tribunal's letter invited the Applicant to comment on the information in writing in English by 24th August 2006.  The Applicant did, in fact, provide comments in reply.  On 16th August he forwarded a letter to the Tribunal in which he gave comment in respect of all the matters that the Tribunal had raised. 

  6. On 24th August, the Applicant wrote again to the Tribunal and provided additional information relating to the inconsistencies to which the Tribunal had referred relating to his failure to expose his genuine name as well as his illegal departure from China. He emphasised what his name, date and place of birth, and residential addresses were.  He went on to say that he had made some mistakes or had some confusion, at the first Tribunal hearing, he was under huge mental pressure at that time.

  7. The Tribunal said in its decision on 30th August, and handed the decision down on 19th September 2006. A copy of the Tribunal decision record appears in the Court Book at pages 141 through to 160.  The Tribunal set out the Applicant's claims and evidence taken from the Departmental file and also set out a summary of the Applicant's oral claims as given to the first Tribunal hearing on 13th September 2004.

  8. The Tribunal then summarised in some detail the Applicant's evidence to the Tribunal at the hearing on 1st August 2006. The letter also referred to the notice under s.424A of the Migration Act and referred to the Applicant's two responses to that letter. The Tribunal also referred to a number of items of independent evidence including material relating to an underground church known as the Shouters, which the Applicant claimed to belong. Independent evidence is summarised at page 152 through to 155 of the Court Book.

The Refugee Review Tribunal Decision

  1. The Tribunals Findings and Reasons can be found at pages 155 to 159 of the Court Book. The Tribunal noted that the Applicant's claims were based on the Convention grounds of religion and imputed political opinion. However, the Tribunal formed an adverse view of the Applicant's credibility saying:

    The applicant did not impress the Tribunal as a credible and truthful witness and his overall evidence casts serious doubt on the veracity of his claims.  Whilst the Tribunal accepts that the applicant is a national of China, for the following reasons the Tribunal does not accept any of the applicant's other claims.[1]

    [1] See Court Book at page 156

  2. The Tribunal then, on pages 156 to 158 set out reasons why the Tribunal did not accept the credibility of the Applicant's claims. The Tribunal's reasons related to the inconsistencies in the Applicant's evidence and those inconsistencies contained significant discrepancies so far as dates were concerned. The inconsistencies relate to doubts about the Applicant's actual identity. The Tribunal referred to documents that the Applicant submitted in support of his claimed. 

  3. At page 157 of the Court Book, the Tribunal said:

    According to the documents he submitted in support of this    claim, the Applicant was born on 30 October 1971.  This would lead to the absurd conclusion that the applicant was employed as a salesman for a Science and Technology Company at the age of 12.  The Tribunal does not accept the applicant's explanations of mental pressure and confusion appearing as satisfactory explanations for the significant inconsistencies in submission of his evidence.

  4. The Tribunal considered the Applicant's response to the letter under s.424A of the Migration Act and commented that the response simply reiterated the Applicant's claims at the second hearing and failed to provide a satisfactory explanation for the inconsistencies in his evidence, apart from his reference to huge mental pressure during the hearing. The Tribunal did not accept the Applicant's claims of being questioned, interrogated, and detailed by the authorities and formed the view that the shifts and changes in the Applicant's evidence have been designed to strengthen the Applicant's case and overcome problems in his evidence.

  5. The Tribunal did not find the Applicant to be a credible witness.  The Tribunal said:

    The totality of the applicant's evidence shows a propensity to exaggerate and tailor his evidence in a manner which achieves his own purposes.  In view of the applicant's creditability and as the Tribunal's previous findings rejecting the applicant's claims that he was a member of the Shouters group in China and that he undertook religious activities, the Tribunal does not accept that the applicant was involved in any plan to transfer funds or religious materials from Guangzhou to Shijiazhuang and does not accept that he was wanted by the authorities for that reason.[2]

    [2] See Court Book at pages 158 -159

  6. The Tribunal found that the Applicant had manufactured a new identity and introduced claims relating to that new identity in order to overcome the problems of his case.  The Tribunal was not satisfied that the Applicant had been harmed in the past, but that there was a real chance that he would be harmed in the future for a Convention reason in the future if he were to return to China and affirmed the decision not to grant the Applicant Protection (Class XA) visa.

Application for Judicial Review

  1. The Applicant commenced proceedings for judicial review in this Court. In his amended application, which was filed on 7th February 2007, the Applicant claims that the Tribunal decision was affected by jurisdictional error in that the Tribunal did not make a genuine attempt to exercise jurisdiction and failed to generally assess the evidence favourable to him. The Applicant then set out certain factual matters and particulars. 

  2. The Applicant went on to complain:

    However, even if the Tribunal on the surface seemed to comply with its obligations under s.424A of the Act, the Tribunal did not genuinely attempt to exercise jurisdiction.  The Tribunal failed to genuinely assess the evidence favourable to me.  It should be regarded as a significant jurisdictional error.

  3. The Applicant also complained that the Tribunal failed to comply with its obligation under s.424A of the Act by saying that although he was given a chance after the hearing he strongly believed what the Tribunal actually expected which would deprive him of his common right to seek judicial review. In other words, he claimed, what the Tribunal intended to do was just for the purpose to go through the motions, but never ever wanted to consider his claimed properly and fairly.

  4. The Applicant also claimed that the Tribunal did not comply with its obligation under s.425 of the Migration Act genuinely and honestly. The Applicant attended Court and was asked to comment and elaborate upon the claims in his application. He indicated that he did not know what to say. The Applicant did not file any written submissions.

  5. As to the Applicant's first ground it is quite clear that the Tribunal made its decision based on the adverse view that it had formed of his credibility.  Those findings were, in my view, open to the Tribunal on the evidence before it.  The Tribunal set out in some detail its Findings and Reasons, the inconsistencies in the Applicant's evidence and the inadequacy of the Applicant's explanations of those inconsistencies.

  6. Where there is evidence upon which the Tribunal is able to make findings the fairness and correctness of the Tribunal's appraisal is not open to judicial review. I am referred to decisions of Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs[3] (at 558-9; and ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[4] at [67]). 

    [3] (1998) 86 FCR 547

    [4] (2000) 168 ALR 407

  7. In my view, the Applicant's first ground fails.

  8. As to the Applicant's second ground, I am not satisfied that the Applicant has shown any failure by the Tribunal to comply with s.424A of the Migration Act. The Tribunal wrote to the Applicant and set out the items of information including the inconsistencies which considered could form the reason or part of the reason for affirming the delegate's decision. The Applicant replied, in writing, with written comments on two occasions, and it is clear from the Tribunal decision[5] that the Tribunal considered the Applicant's response. The fact is that the Tribunal did not accept the Applicant's explanation of the inconsistencies pointed out in the Tribunal's s.424A letter.

    [5] at Court Book  151-152

  9. The Applicant claims that all the Tribunal intended to do was just to go through the motions of undergoing its obligations under sub-section 424A(1), it never wanted to consider his claims properly and fairly. There is no evidence of that whatsoever. The Applicant claims:

    As a matter of fact, the genuine purpose of s.424A of the Act should provide me a fair chance to comment on the information used by the Tribunal in making its decision.  And it should also create a chance for the Presiding Member to further consider my claims in order to make a fair decision.

  10. That is exactly what the Tribunal did. There is no breach of s.424A of the Migration Act. The Applicant's amended application seems to suggest that the Tribunal did not act genuinely or honestly in sending the notice under s.424A(1) and considering the Applicant's reply.

  11. Counsel for the Respondent, Mr Mitchell, has, quite correctly in my view, pointed out that this is a claim of bad faith.  The allegation of a lack of bona fides is a serious matter involving personal fault on the part of the decision maker.  A claim of this nature should not be lightly made and must be clearly alleged and proved. (See SBBS v Minister for Immigration & Multicultural Affairs & Indigenous Affairs[6]).  As I said there is no evidence of bad faith whatsoever, and that ground must be strongly rejected. 

    [6] (2002) 194 ALR 749

  12. The Applicant also claims that the Tribunal failed to comply with its obligations under s.425 of the Migration Act “genuinely and honestly”. I have already referred to and rejected the allegation of lack of bona fides in the part of the Tribunal. It is clear that the Tribunal wrote to the Applicant and invited him to attend the hearing. The Applicant indicated that he wished to attend the hearing and in his Response to Hearing Invitation indicated that he needed an interpreter in the Mandarin dialect of Chinese.

  13. A copy of Response to Hearing Invitation can be found at page 129 of the Court Book. The Applicant was provided with an interpreter in Mandarin for the purpose of the hearing. It is quite clear that the Tribunal put to the Applicant at the hearing matters that had been referred to in the earlier Tribunal hearing and gave the Applicant the opportunity to apply them at the hearing. The Tribunal also wrote the s.424A letter to the Applicant after the hearing on 10th August 2006 inviting the Applicant to comment on certain pieces of information, and the Applicant took advantage of that opportunity.

  14. There is nothing that I can see that raises any arguable case that the Tribunal did not comply with the requirements of s.425 of the Migration Act to invite the Applicant to attend the hearing and give him a genuine opportunity to give oral evidence and make submissions in support of his case. That ground must fail.

  15. The Applicant is not legally represented. I have read through the Tribunal's decision and the supporting materials myself independently of either the Respondent's submissions or the Applicant's amended application and I am satisfied that no arguable case for jurisdictional error arises. Consequently, I find that the Tribunal decision is a privative clause decision within the terms of s.474 of the Migration Act.

  16. As a privative clause decision it is final and conclusive and it is not subject to orders in the nature of certiorari or mandamus as the Applicant seeks.  It follows that the application will be dismissed.

  17. I will change the title of the first respondent to Minister for Immigration & Citizenship. 

  18. There is an application for costs on behalf of the First Respondent Minister in the sum of $4,850.00. The Applicant has been wholly unsuccessful in his claim and I am satisfied this is an appropriate matter for costs.  The sum of $4,850.00 put to me by Mr Mitchell, which is an estimate of costs on a party and party basis inclusive of counsel's fees, is to my mind an appropriate figure.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  21 September 2007


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