SZFSU v Minister for Immigration
[2006] FMCA 242
•23 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFSU v MINISTER FOR IMMIGRATION | [2006] FMCA 242 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – whether the Tribunal denied the applicant procedural fairness – merits review – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B |
| SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZFSU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 411 of 2005 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 22 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application be dismissed.
That the applicant pay the respondent’s costs fixed in the amount of $3000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 411 of 2005
| SZFSU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under s.39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 11 January 2005 affirming a decision of a delegate of the respondent to refuse the grant of a protection visa to the applicant. Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 it is appropriate that the Tribunal be joined as a party to these proceedings.
The applicant, a citizen of the People’s Republic of China, arrived in Australia on 26 June 2004 using a Malaysian passport. He lodged an application for a protection visa on 10 August 2004. A delegate of the respondent refused the application on 15 September 2004 and an application was made before the Tribunal on 11 October 2004 seeking review of that decision.
The application
The applicant relies upon his application filed on 16 February 2005. The application alleges as follows:
a)The applicant has fears of the prosecution by the government authorities in his home country for his religious belief;
b)The applicant seeks protection from the Australian government for meeting the definition in the Refugees Convention by UN; and
c)There exists a legal error in the Tribunal’s decision (denial of natural justice).
The applicant’s claims and the Tribunal decision
The applicant attended a Tribunal hearing on 13 December 2004 and gave oral evidence with the assistance of a Mandarin interpreter.
The applicant claimed to be from Jiangjing Town, Fuqing City in Fujian province. He claimed that he had been a practising Christian. He said in his written claims to the Tribunal that he and his uncle had set up a construction firm of which the primary purpose was to spread the gospel, and establish religious groups and raise funds for the underground church.
The applicant claimed to have been arrested and detained for one month in about October 2000.
The applicant claimed that he was questioned on several occasions in April 2002 because of his membership of the construction firm.
The applicant claimed that in May 2002 his uncle assisted him establish a new construction team because the previous one had become the subject of suspicion on the part of the authorities and was therefore disbanded by his uncle. The applicant claimed that for the next two years he targeted small towns in Fujian and set up about ten small Bible study groups, three large gathering places and organised thousands of copies of religious propaganda material. He says he was questioned and threatened by police on many occasions.
The applicant claimed that in March 2004 he was arrested by the local Public Security Bureau (PSB) in Minhou Town for distributing religious materials to students and teachers at a Minhou school. He said that he was released temporarily in April 2004 after his uncle paid a bribe.
The Tribunal accepted that the applicant was a national of the People’s Republic of China.
The Tribunal however was not satisfied on the applicant’s evidence that he had demonstrated any knowledge of the tenets of Christianity at the hearing and that his evidence was inconsistent with independent country information.
The Tribunal further found that the applicant’s evidence was implausible. It did not accept that the applicant had been an activist within an underground church in China and nor did it accept that he had been suspected by the authorities of such involvement or was ever questioned or detained for that reason. It also found that if he was now a Christian he was able to practice in a registered church without difficulty.
Reasoning
The applicant alleged in his application that the Tribunal had made a legal error in reaching its decision and that he was therefore denied natural justice. The applicant has not provided any particulars either of this ground nor indeed any of the grounds contained in his application. I felt it appropriate to give the applicant every opportunity to expand on his grounds at the hearing. The applicant was not able to establish error in the Tribunal decision and after hearing his submissions it would seem apparent that he seeks an impermissible merits review of the decision. The Court is precluded from such review and is limited to jurisdictional error. On a fair reading of the decision I ses no error or jurisdictional error that would lead the Court to interfere with the decision.
The findings of the Tribunal were findings reasonably open to it. The applicant’s claims were largely rejected on the basis of credibility. The Tribunal’s rejection of the applicant’s claims is the function of a primary decision maker par excellence (Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J). So long as the Tribunal’s findings were open to it, no error is demonstrated (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [558]-[559]; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69], per Tamberlin and R D Nicholson JJ). The Tribunal’s conclusions were clearly open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]). Further, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact even if this were shown to be the case in this instance (which it was not) (Abebe v Commonwealth (1999) 197 CLR 510 at [137]).
As no jurisdictional error is apparent the application is dismissed with costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Legal Associate: Peter Smith
Date: 23 February 2006
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