SZFUC v Minister for Immigration

Case •

[2006] FMCA 689

•

2 May 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFUC v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 689

MIGRATION – Visa – protection 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 a citizen of China claiming fear of persecution for reason of religion – claim to be a member of an underground church – credibility.

MIGRATION – Information incorporated in visa application republished to Refugee Review Tribunal is within s.424A (3)(b) of the Migration Act (Cth) 1958.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A, 474
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034
M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131
SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137
SZDSI v Minister for Immigration & Multicultural Affairs [2006] FCA 425
Craig v South Australia [2005] HCA 58
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S20 of 2002 (2003) 198 ALR 59
Applicant: SZFUC
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 517 of 2005
Judgment of: Scarlett FM
Hearing date: 2 May 2006
Date of last submission: 2 May 2006
Delivered at: Sydney
Delivered on: 2 May 2006

REPRESENTATION

Solicitor for the Applicant: Mr Koramoah
Solicitors for the Applicant: Legalmax Lawyers
Counsel for the Respondent: Ms Wong
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. Liberty to add the Refugee Review Tribunal as a party.

  2. The Refugee Review Tribunal is joined as Second Respondent to the application.

  3. The Application is dismissed.

  4. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.

  5. I allow nine (9) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG517 of 2005

SZFUC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 29th December 2004 after a hearing that took place on 14th December 2004. 

  2. The Refugee Review Tribunal handed down its decision on 28th January 2005. The decision of the Tribunal was to affirm a decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the Applicant.

Background

  1. The Applicant is a citizen of the People's Republic of China who arrived in Australia on 21st July 2004. On 24th August 2004 he applied for a protection (class XA) visa. The application was refused on 27th September 2004 and on 27th October 2004 the Applicant lodged an application for review by the Refugee Review Tribunal. 

  2. The Applicant claimed a fear of persecution because of his Catholic religion and because he said that he took an active role in the Catholic underground church. He claimed that he would be subject to persecution if he were to return to China because:

    a)He is regarded as a key member of the Roman Catholic underground church and the founder and sole leader of an underground printing factory.

    b)His home has been searched and his family has been under surveillance by the PSB. 

The Tribunal’s Decision

  1. The Tribunal accepted that the Applicant was from a Christian Roman Catholic family and practised that religion in China. The Tribunal did not accept the Applicant as a witness of truth in relation to his evidence about his involvement with the Christian underground church in China.

  2. It was the Tribunal's view that there was no plausible evidence that the Applicant suffered persecution in China because of his religious activities, or would suffer persecution then or in the future. The Tribunal affirmed the delegate's decision not to grant a protection visa.

The Application for Judicial Review

  1. The Applicant has sought a review of that decision from this Court.  The Applicant seeks to set aside the decision of the Refugee Review Tribunal for jurisdictional error. The Applicant's solicitors have provided written submissions and I have also considered the oral submissions put to me on the hearing day.  It was claimed that the Applicant was not able to articulate his claim properly. It is also claimed that the Tribunal completely ignored the documents presented to the Tribunal. 

  2. Under s.65 of the Migration Act the Tribunal stood in the same shoes as the original decision maker, that is the delegate. Ignoring relevant information is a jurisdictional error, and I am referred to the well known decision of the High Court in Craig v South Australia [2005] HCA 58. I am also referred to the decision of NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137 where it was held that the Act contemplates that the Tribunal will take account of any evidence. If the Tribunal ignored that evidence, that is an error of law.

  3. The Applicant had claimed that he was confused during the hearing.  If it was a fact that the Applicant was confused, the Applicant submits that the Tribunal should have given the Applicant an opportunity to reflect or seek advice. The Tribunal has a duty to act fairly, and I am referred to the decision of SZDSI v Minister for Immigration & Multicultural Affairs [2006] FCA 425, a decision of Graham J in the Federal Court. It is an appeal on leave from a decision of the Federal Magistrates Court. The submission of the Applicant is that the Tribunal grossly neglected the Applicant's evidence.

  4. It was conceded for the Applicant that there was no evidence that the Applicant had asked for time out. But there is evidence that the Applicant felt unclear and confused. For the Respondent, Ms Wong of counsel referred to written submissions which were filed in response to the Applicant's written submissions that were made on 31st January 2006.  The Respondent's outline of submissions in reply was filed on 2nd March 2006. 

  5. Counsel for the Respondent submits that the Applicant's submissions raised three new grounds of review which she characterised as follows:

    a)that the Tribunal failed to consider the Applicant's claim to have been punished in 1988 for organising a praying group of students (she calls ground 4);

    b)that the Tribunal failed to comply with s.424A of the Migration Act because it failed to provide the Applicant in writing details of the information relied upon by the Tribunal (that is described as ground 5); and

    c)that the Tribunal failed to consider properly and form a view upon evidence given by two witnesses in support of the Applicant's claims prior to assessing the Applicant's credibility. That is referred to as ground 6.

  6. I would make it clear at this stage that the fact that the Applicant's case changed since the time that the Applicant was originally filed, was due solely to the fact that the Applicant rather belatedly obtained legal advice. In view of the history of the matter, it would have been preferable if the Applicant had instructed his solicitors much earlier than he did, but that of course is not the fault of his solicitors for one moment. Once the Applicant was legally represented, the progress of the matter went far more smoothly. 

  7. Turning to the Applicant's grounds of failure to consider the Applicant's claims, it was put by counsel for the Respondent that the Tribunal record did show that the Tribunal had considered the Applicant's claims. In particular, in the large paragraph on page 72 of the Court Book the Tribunal set out a summary of the Applicant's claims which made it clear that the Tribunal had made findings which encompasses the Applicant's claims to have suffered persecution in 1988 when he was excluded from school. I am referred to the decision of the Full Court of the Federal Court of Australia in WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [47]:

    It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.

  8. Turning to the Applicant's argument about the breach of s.424A of the Migration Act, the Applicant had argued that the Tribunal had failed to issue a s.424A notice in respect of this particular information:

    The Tribunal put to the applicant that it was having trouble accepting as true what he said about being a Christian - Roman Catholic as he could not tell the Tribunal very much about the principles of the Roman Catholic religion which he said he had been involved in all his life, and could not give the Tribunal many details about what he did to organise the printing factory as he claimed he did.  The applicant responded that he felt unclear and confused about what he wanted to say. 

  9. What the Respondent submits, and in my view correctly, is that that passage consists of conclusions that the Tribunal was seeking to draw from evidence given by the Applicant at the hearing. As such, evidence given by the Applicant comes under the exception set out in s.424A(3)(b), being evidence that the Applicant gave for the purpose of the application. To the extent that the Tribunal drew conclusions from the information provided by the Applicant at the hearing, those conclusions do not constitute information for the purposes of s.424A as the word information does not encompass "The Tribunal's subjective appraisals, thought processes or determinations". I refer to VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471.

  10. Now, the evidence of the Applicant's witnesses was a point of some controversy. Those witnesses were called by the Applicant and counsel for the Respondent submits that their evidence falls squarely within the confines of s.424A(3)(b). Against this, however, it was put to me by the solicitor for the Applicant in reply that that evidence is not covered by subsection (3)(b), which excludes information that the Applicant gave for the purpose of the application.

  11. Mr Koramoah for the Applicant submitted that the subsection is to be read narrowly not widely, and that it cannot be said that evidence from the witnesses can be characterised as evidence from the Applicant. He submits that the words "that the Applicant gave for the purpose of the applicant" refer to information that came directly from the Applicant. 

  12. I have given consideration to that submission and I am not satisfied that it reflects the law. It may be in cases where a witness is called that the witness gives evidence of which the Applicant is totally unaware. That is not the case here. In this case, the Applicant called witnesses to give evidence on his behalf and their evidence formed part of the Applicant's case and their evidence, in my view, is characterised as information that the Applicant gave for the purpose of the application. So in my view, evidence from the Applicant's witnesses does come within the exception of s.424A(3)(b).

  13. As to the failure to make findings on credibility which the counsel for the Respondent characterises as ground 6, in reply to the Applicant's submission that it was the duty of the Tribunal properly to consider and form a view about the evidence that corroborated and supported his claim in material respects before assessing the Applicant's credibility, it was submitted on behalf of the Applicant that the Tribunal erred because once it had made assessment of the Applicant's credibility no amount of available evidence , corroborative evidence supporting his claim would be even considered to persuade it otherwise. 

  14. The Applicant had relied on the dissenting judgment of Kirby J in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20 of 2002 (2003) 198 ALR 59. That part of his Honour's judgment did not form part of the reasoning of the majority of the Court and in my view cannot be regarded as part of the ratio decidendi of that decision. The majority, Gleason CJ, McHugh, Gummow and Callinan JJ each concluded that the Tribunal's decision making process did not disclose error of the type alluded to by Kirby J.

  15. In any event, the Tribunal did give independent reasons for determining that the Applicant's witnesses were not persuasive, by reason that the evidence given by those witnesses was:

    Either hearsay or repeated by the witnesses from information the applicant himself had given them.

  16. And that is at page 77 of the Court Book.  There is no other evidence to suggest that the Tribunal was biased or reached its conclusions other than on the basis of the evidence placed before it.

  17. In my view, the Tribunal was not satisfied that the evidence given by or on behalf of the Applicant as part of the applicant's case was of sufficient credibility or plausibility to satisfy the Tribunal that the Applicant met the requirements for a visa. In my view, there is no jurisdictional error.  As there is no reviewable error, the application will be dismissed. 

  18. There is an application for costs in respect of these proceedings in the sum of $4,500.00.  I do not propose to disturb my earlier order of some $1,700.00 to which Ms Crawley for the Respondent has earlier adverted.  That amount stays. 

  19. The solicitor for the Applicant has pointed out that his client is in an unfinancial situation, indeed to such an extent that it was difficult for his client to obtain legal advice at all. And without revealing any confidential material, he made it clear that in his case he was undertaking the work for a significantly lower figure than would otherwise be the case. This was not offered as an excuse but as an illustration of the Applicant's financial circumstances.  It was submitted that no order for costs should be made.

  20. Whilst I accept the Applicant's relative financial impecuniosity, in my view a successful party would normally expect to receive a costs order and the sum of $4,500.00 inclusive of counsel's fees appears to me to be reasonable and within the scale that I would expect to award. 

  21. It is a matter of praise for the Applicant's legal advisers that they undertook the work for the Applicant at a fee that I understand to be significantly less than they would ordinarily be entitled to. The fact that legal practitioners are prepared to assist parties in this way speaks highly for their professionalism and the Court has certainly been grateful to Mr Koramoah for the assistance that he has given in the smooth running of this matter. As I have said earlier, once the Applicant was legally represented, matters ran much more smoothly and that is very much to the credit of his legal advisers.

  22. Whilst in my view impecunious circumstances of a party are not of themselves a ground for not making an order for costs, they are a ground for consideration of time to pay. In my view, it would be appropriate in the circumstances to allow nine months to pay those costs, and one would hope that the Applicant's immediate priority would be reimbursing the legal advisers who have served him so well.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V Lee

Date:  11 May 2006

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