SZFUW v Minister for Immigration - [2005] FMCA 981

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFUW v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 981

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – reliance by the RRT on country information provided by the Department of Foreign Affairs and Trade – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 474

NARD v Minister for Immigration [2004] FCAFC 27
SZAWW v Minister for Immigration [2003] FMCA 479
SZDLR v Minister for Immigration [2005] FCA 773
SZDZV v Minister for Immigration [2005] FCA 416

Applicant:

SZFUW

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 543 of 2005

Judgment of:

Driver FM

Hearing date:

13 July 2005

Delivered at:

Sydney

Delivered on:

13 July 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Ms S McNaughton

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Court directs that the name of the applicant is not to appear on the transcript.
The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 543 of 2005

SZFUW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 13 April 1999. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of political persecution. The general background facts are set out in written submissions prepared on behalf of the Minister by Ms McNaughton. I adopt the paragraphs 2, 3, 4, 6, 7, 8, 9 and 10 of those submissions for the purposes of this judgment as background:
The applicant, a citizen of China, arrived in Australia on 7 November 1996.[1]
On 6 February 1997, the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs pursuant to the Migration Act 1958 (Cth) (“the Migration Act”). A delegate of the respondent refused to grant a protection visa on 7 August 1997. The applicant applied to the RRT for a review of that decision on 25 August 1997[2], and on 13 April 1999 the RRT affirmed the decision not to grant the applicant a protection visa[3].
The applicant applied to the Federal Magistrate’s Court for a review of the RRT’s decision on 1 March 2005, almost six years after the RRT’s decision. The applicant was ordered to file and serve an amended application giving complete particulars of each ground of review relied upon by 1 June 2005. As at the date of the preparation of these submissions, an amended application has not been filed.
Nature of applicant’s claim for refugee status
The applicant claimed persecution for reason of political opinion, having supported the pro-democracy movement in 1989 in Fujian. He was investigated and interrogated by the Public Security Bureau, and was detained for three days at the local station. On release, he was required to report daily, and an adverse report was filed against him. He claimed that increasing numbers of activists were being arrested which prompted him to leave for Hong Kong, using a false passport[4].
The applicant claimed that in Hong Kong, he participated in pro‑democracy movement anniversary marches and distributed anti‑Communist printed material. He claimed to fear that pro‑democracy advocates would be punished after the handover of Hong Kong to China.[5]
The RRT’s decision
The applicant attended a hearing before the RRT on 16 February 1999. It became apparent that the applicant had been granted a Hong Kong Certificate of Identity under the name of his false passport in 1994[6]. The applicant was also in possession of a PRC identity card in his true name. He claimed this had been obtained from the authorities in his home town by his family.[7]
The RRT noted that the applicant conceded that, despite his earlier claims, he did not fear persecution in Hong Kong for a Convention reason. The RRT went on to consider whether or not the applicant had a well founded fear of persecution in the PRC. It accepted the applicant’s claim that he had participated in pro-democracy demonstrations in Fujian in 1989 and was detained but subsequently released on bail. It also accepted that he had fled China on false papers because he feared further arrest[8].
However, the RRT relied on the independent evidence which was to the effect that a person such as the applicant, who did not have a high political profile, would no longer be of interest to the Chinese authorities[9]. It also noted that the applicant did not claim that his family encountered any difficulties when they applied for an identity card on his behalf[10]. The Tribunal also noted the applicant’s comments that he did not fear persecution in Hong Kong but wanted to rejoin his family and return to his home town[11].
[1] court book, page 40
[2] court book, pages 1 - 4
[3] court book, pages 39 - 45
[4] court book, page 42.4
[5] court book, page 42.7
[6] court book, page 42.9
[7] court book, page 43.5
[8] court book, page 44.7
[9] court book, pages 43-4
[10] court book, page 44.8
[11] court book, page 44.9
The application before the Court was brought about six years after the decision of the RRT. Both the applicant and Ms McNaughton confirmed that this is the first application to a court to review the decision of the RRT. I do not know and Ms McNaughton was not able to tell me how it has come about that the applicant was permitted to remain in Australia unmolested by the Minister's department for that period. The applicant simply told me that he spent the time living a normal life in Australia. He was apparently detected and taken into detention on 24 January this year.
The legal significance of the absence of any earlier court proceedings for judicial review is that s.474 of the Migration Act applies to the decision if it is a privative clause decision. In order to succeed in this application the applicant must establish jurisdictional error. The jurisdictional complexities that have been dealt with by the Federal Court in SZDLR v Minister for Immigration [2005] FCA 773 and SZDZV v Minister for Immigration [2005] FCA 416 and in this Court in SZAWW and Minister for Immigration [2003] FMCA 479 do not arise.
The judicial review application raises the following grounds:
1.The Tribunal relied crucially upon advice received by it from the Department of Foreign Affairs and Trade.
2.The applicant through his adviser at the Tribunal hearing cautioned against the Tribunal relying on such advice. The Tribunal sought the assistance of the Department of Foreign Affairs and Trade in establishing whether its earlier advice remained accurate.
3.The Tribunal was in error in making a decision. There was no evidence before it to support that opinion; and
4.The applicant invites the Court to find out whether the Tribunal made an error of law in making its decision.
The Court is inhibited in attempting to resolve the issues raised by the application because of the unfortunate procedural history of this matter. Ms McNaughton read the affidavit of Laura Gazi made on 12 July 2005 which details the unsuccessful attempts by the Minister's solicitors to locate the Minister’s department's files concerning this case. In particular, the applicant's original protection visa application and the decision of the Minister's delegate on it are not available. Nevertheless, I do have available to me the documents contained in the green court book which include the decision of the RRT and documents from the RRT’s file.
The application appears to assert that the RRT should not have placed the reliance it did on the information received from the Department of Foreign Affairs and Trade. It is clear from the decision of the RRT that the presiding member significantly relied on country information supplied by DFAT. Ms McNaughton deals with this issue in paragraph 13 of her written submissions. I agree with that paragraph and adopt it for the purposes of this judgment:
The first two grounds relied upon by the applicant appear to contend that the RRT should not have relied upon the independent country information. The respondent contends that these grounds must fail. The RRT was entitled to rely upon the independent country information in drawing conclusions of fact: NARD v Minister for Immigration [2004] FCAFC 27 at [10] and [13].
The purported no evidence ground raised cannot succeed. The decision of the RRT is clearly based upon an assessment of the material supplied by the applicant and the country information. The decision of the presiding member, while brief, is clearly based upon evidence. The application does not coherently raise any other asserted jurisdictional error.
In argument I canvassed with Ms McNaughton the possibility that the application may raise an issue of procedural fairness. I assume that at the time the decision was made the RRT was subject to both procedural fairness obligations under the general law and also the obligations imposed by s.424A of the Migration Act. To the extent that the RRT was subject to procedural fairness obligations under the general law in respect of the country information it appears on the basis of the limited material available that those issues were discussed with the applicant at the hearing conducted by the RRT. To the extent that s.424A of the Migration Act applied I find that the country information relied upon by the RRT was information falling within s.424A(3)(a) of the Migration Act.
Accordingly, there was no obligation on the RRT to provide written notification of the country information to the applicant.
I asked the applicant whether there were any other matters he wanted to raise. He referred to his inability to obtain legal aid. The applicant feels disadvantaged by the fact that he was not legally represented.

I confirmed with the applicant that he participated in the Minister's panel advice scheme and indeed the Court's correspondence file confirms that advice was provided to him on 21 June 2005. I am satisfied that the applicant has been given a reasonable opportunity to be informed of his legal position and to prepare for today's hearing.
The hearing today was conducted by telephone from the Villawood Detention Centre. I adopted that course because the detention centre neglected to bring the applicant to court notwithstanding a request to do so from the Minister's solicitors. I satisfied myself in making that decision that the applicant was not unfairly disadvantaged by a telephone hearing. The applicant had available to him the green court book. The applicant apparently had not received Ms McNaughton's written submissions but I arranged for the interpreter to read them to him in the Mandarin language.
The applicant was not able to point to any other jurisdictional error in the decision of the RRT. None is apparent to me. In the circumstances, the decision is a privative clause decision. I must dismiss the application.
I will order that the Refugee Review Tribunal is joined as the second respondent to the proceedings and that the application is dismissed.
On the question of costs, the application having been dismissed, costs should follow the event. Ms McNaughton seeks $5,000 on a party and party basis. The applicant did not wish to be heard on the question of costs. I am satisfied that costs of $5,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 18 July 2005