SZFLZ v Minister for Immigration - [2005] FMCA 972

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFLZ v MINISTER FOR IMMIGRATION

[2005] FMCA 972

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 the People’s Republic of China.

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

Applicant:

SZFLZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG315 of 2005

Judgment of:

Scarlett FM

Hearing date:

19 May 2005

Date of Last Submission:

29 June 2005

Delivered at:

Sydney

Delivered on:

29 June 2005

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,400.00 and I allow one (1) month to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG315 of 2005

SZFLZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal made on 19 April 1999.
The decision of the Tribunal was to affirm the decision of a delegate of the Minister not to grant a Protection Visa to the applicant.
The applicant arrived in Australia in September of 1996. He did not lodge an application for a Protection Visa until 28 January 1998. The explanation that he gave at the hearing today was that he did not do so because he was in Melbourne. He had arrived with his brother who travelled to Sydney and the brother eventually told him that he too could lodge an application for a visa.
A delegate of the Minister refused the application for a visa on the

16 May 1998.
On 16 June 1998 the applicant applied to the Refugee Review Tribunal for a review of that decision.
The applicant provided some material to the Tribunal on 5 February 1999.
He was invited to attend a hearing of the Tribunal on 12 February 1999. The applicant attended that hearing and gave evidence. He told the Tribunal that he had a well-founded fear of persecution for a convention reason because of his religious beliefs. He said that he had been a member of the Catholic Underground Church of China. He told the Tribunal that he had been held in a labour camp for some eight years.
The applicant told the Tribunal that the public security bureau had issued a warrant for his arrest in 1996.
He produced documents to the Tribunal prior to the hearing, including a copy of a circular which he said was a wanted circular dated 28 December 1998. He said that had been torn from a bus stop in Fujian and sent to him by his family. The applicant of course had left China two years before that poster was said to have been placed on the bus stop.
The Tribunal did not accept the applicant's account of his history. At page 97 of the Court Book in the findings and reasons for decision, the Tribunal members said:
I did not form a favourable impression of the credibility of the applicant on the basis of his evidence at the hearing before me.
In particular, whilst the Tribunal accepted that the applicant was a citizen of the People’s Republic of China and had come to Australia on a false passport, the Tribunal did not accept that the applicant was a credible witness, noting that his evidence in his claims were inconsistent, his knowledge of Catholicism was very limited and he gave inconsistent answers as to when he had been arrested.
The Tribunal did not accept that the applicant was in fact a devout Catholic or that he had been in prison for eight years at a labour camp in 1982 or that his name had been placed on an arrest list as a result of his participation in student parades in 1989.
The Tribunal did not accept that there was a warrant issued for his arrest or that there was a "wanted" circular relating to him had been publicly exhibited in China in late 1998.
The Tribunal did not accept the applicant's claims of the independent country information being unreliable.
The unfortunate reality for the applicant is that the Tribunal just did not believe him.
The applicant filed an amended application on 4 April 2005. His original application was filed on 11 January 2005. The applicant had said that he had no money to challenge the Tribunal decision until he was taken into Immigration Detention in November 2004. I would comment that it is surprising that the applicant was allowed to remain in the country since 1999 even though his application to the Tribunal for a review had been dismissed.
In his amended application the applicant claims a well-founded fear of persecution for reasons of political activities in China. In his original application he claimed a fear of persecution based on his religious beliefs, being a member of the Catholic Underground Church in China. It is the question of the applicant's religious beliefs that the applicant gave as his reasons to the Tribunal in 1999 for seeking a Protection Visa.
The applicant explained this discrepancy in the proceedings today by saying that membership of an underground church is seen by the Chinese government as a participation in political activities. The applicant said that he attempted to explain this to the Tribunal but was unsuccessful.
The applicant's amended application sets out four grounds for his application for the decision of the Tribunal to be set aside. Ground one says nothing more than:
The Tribunal's decision and reason for decision on 19 April 1999.
Ground two says:
I am a citizen of China who claims to have a well-founded fear of persecution for reasons of political activities in China in 1989 under the refugee's convention, as amended by the refugee protocol.
Neither of those two grounds, one and two, are in fact grounds for judicial review. Ground three says:
The Tribunal was in error on those findings were open to it from my side, fact and evidence.
Ground four says:
There is, on the face of the Tribunal decision, no basis for making such a statement. The Tribunal member is substituting her view. This is no more than a personal judgmental view without any foundation or evidence.
These grounds, I would interpret, as being a challenge to the Tribunal on the basis of bias which was put to me orally today and a challenge to the evidentiary basis upon which the Tribunal made its findings. In other words, a no evidence submission.
Basically, from his submissions, the applicant has endeavoured to canvass the facts of the Tribunal's review on merits.
A Court conducting judicial review has no power to reconsider the facts and substitute its own view of the facts for those of the decision maker. That is purely the duty of the decision maker and is no part of the Court's duty at all.
The question of whether or not the decision maker finds parties' evidence credible is purely a matter for the decision maker as set out in Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 168 ALR 407. In my view, the evidence before the Tribunal made it – was such that it was open to the Tribunal to make those adverse findings to the credibility of the applicant. See Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR at 547.
The applicant has in his submissions today attempted to canvass the factual findings but as I said they are the role of the decision maker. The applicant has made a claim of bias but his claim of bias is based entirely on the facts, so far as I can see, that he received an unfavourable decision. It is well known that a claim of bias or bad faith is a grave accusation and involves personal fault on the part of the decision maker. Such an accusation should not be made lightly. I refer to the decision of von Doussa J in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668.
The fact is that the applicant has not shown in his applications or in his submissions any ground for judicial review. He has shown no jurisdictional error and in my examination of the Tribunal's decision, which I have conducted independently of the applicant's submissions, I cannot find any ground for finding of a jurisdictional error.
The applicant attended the hearing of the Tribunal and gave evidence in great detail and was asked a number of questions by the Tribunal member. The Tribunal member put to the applicant that the Tribunal had doubts as to his credibility. Those doubts included putting a doubt as to the credibility of a "wanted" circular which the applicant had produced with his material prior to the hearing. The Tribunal member specifically put to the applicant - and it's reported at page 99 of the Court Book - the Tribunal's doubts about the authenticity of that document and the reasons for those doubts.
In my view, there is no denial of natural justice and no breach of the requirement of procedural fairness. There is no jurisdictional error. There is no reviewable error. The application will be dismissed.
There is an application for costs. In this jurisdiction costs usually follow the event. The applicant is in detention and as a result he would be somewhat impecunious as he has been in detention since November 2004. Nevertheless, that is not a ground as such for refusing an application for costs. The amount sought, $4400 is well within the range of costs set out in the Federal Magistrates Court Rules in Schedule 1 and I note that this was a matter where it was not considered necessary to brief counsel. In my view the solicitor who has had carriage of the matter, Ms Burnett, was well capable of dealing with the matter and all its complications. I am of the view that the lump sum of $4400 is appropriate. I will make an order for costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 18 July 2005