SZGJX v Minister for Immigration
[2005] FMCA 1385
•29 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGJX v MINISTER FOR IMMIGRATION | [2005] FMCA 1385 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of China – no reviewable error – privative clause decision. |
| Migration Act 1958 (Cth), s.39B |
| Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZGJX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1354 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 August 2005 |
| Date of Last Submission: | 29 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Jordan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
That the Refugee Review Tribunal is to be joined as second Respondent to these proceedings.
The Applicant is to pay the first Respondent’s costs fixed in the sum of $4,000.00 and I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1354 of 2005
| SZGJX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal which was made after a hearing that took place on 12 January 1999.
The decision says on its face that it was made on 9 January 1999 but that is clearly a clerical error. The hearing did not take place until
12 January and the decision was handed down on 9 February 1999. The decision affirmed a decision of the delegate and the minister not to grant the applicant a protection visa. The applicant seeks a review of that decision.
The applicant is a citizen of China. He arrived in Australia on
19 October 1996. On 18 November in that year he lodged an application for a protection visa. A delegate of the Minister refused that application on 18 August 1997. From 11 September 1997 the applicant sought a review of that decision from the Refugee Review Tribunal.
The decisions of the Tribunal refers to the applicant having sought his review on 11 September 1998 as set out at page 66 of the Court Book. That is clearly incorrect and I take it another clerical error.
The applicant claims to have a well founded fear of persecution for a convention reason based on his political views and activities. He had uncovered corruption amongst various officials and had sought to expose that corruption.
From 1993 through until 1996 the applicant produced petitions and a magazine and other publications exposing corrupt practices. His later publications called for the commencement of democracy in China. Even though the applicant was aware that the government had launched an anti corruption drive he found that officials in the company for whom he worked seemed to be above the law. As he told the Court today, in China the power is above the law.
The applicant said that in November 1994 he and seven farmers were arrested by the Public Security Bureau. He said that they were taken to Shanghai and illegally detained for six months. He was released in May 1995 but was not able to work at his original job. He was given a menial position at a greatly reduced monthly wage.
The applicant attended the Tribunal hearing and gave oral evidence. The Tribunal member asked him some questions. After the hearing, on 17 January 1999, the applicant wrote to the Tribunal complaining that the interpreter at his RRT hearing made many mistakes. He sought to correct those mistakes in his letter.
The Tribunal did not grant his application. The Tribunal made a number of unfavourable comments about the credibility of the applicant's evidence. At page 73 of the Court Book the Tribunal member said in her findings and reasons:
In reviewing the applicant's claims from the time of his first submission I note that he has been ready to change his evidence to suit his purposes in a manner that casts doubt over significant portions of his evidence.
At page 74 of the Court Book the Tribunal said:
Another matter affecting the credibility of the applicant's evidence is the fact that a significant body of it is at odds with independent evidence.
The Tribunal did find that the applicant opposed corruption and had accused his boss of corruption. The Tribunal did find that the applicant was involved in putting out an underground publication which was called The Democracy (see page 75 of the Court Book). The Tribunal did not consider that this would have resulted in persecution.
The Tribunal went on to find at page 75.9 that:
Nothing in the applicant's evidence would support a finding that he was a prominent activist or that the newspaper that he helped put out was big enough to disturb the authorities.
At page 76 of the Court Book the Tribunal summarised the reasons for rejecting his claim as:
In sum I find that the applicant's evidence lacks credibility on any points.
The applicant has filed an amended application. This application was filed on 23 August 2005 after the applicant had received advice from a barrister on a pro bono basis. His original application had been made on 24 May 2005 shortly after he was taken into detention.
In his amended application the applicant seeks the following:
(1) A writ of certiorari quashing the decision.
(2)A writ of mandamus compelling the Tribunal to rehear and redetermine the matter according to law.
The applicant gives two grounds with his application. First that the Tribunal made an error of fact at page 69 of the Court Book by saying that the applicant had continued to work for the same company after the Public Security Bureau released him from detention in May 1995. That, in fact, was not correct. The applicant says that that was a wrong finding of fact resulting in jurisdictional error. I am not satisfied this is anything else but a wrong finding of fact.
The second ground is that the Tribunal fell into jurisdictional error when it found that the applicants involvement in putting out an anti corruption pamphlet that also called for democracy would not result in persecution. The applicant says this is contrary to the country information before the Tribunal.
That may be so but, again, it appears to me to be a finding of fact.
I asked the applicant at the hearing why there was a delay of more than six years in commencing these proceedings. The decision was handed down on 9 February 1999 and his original application was not made until 24 May 2005, shortly after he was taken into immigration detention.
The applicant said that he did not understand Australian law and did not receive anything to tell him that his application had been refused. He admitted he had a migration agent assisting him but said the agent did not let him know about the outcome of his application. He said he was taken into detention in 1999 and told then but was later released from detention.
For the respondent, Mr Jordan of counsel, points out that the Tribunal found that the applicant's evidence lacked credibility and that whilst the Tribunal accepted that the applicant had opposed corruption and had participated in the publication of a pamphlet that had criticised corruption and called for democracy, the Tribunal was not satisfied that this conduct would lead to persecution by the Chinese authorities.
This was based on the Tribunal's adverse finding about the applicant's credibility and the fact that his evidence was contradicted by the country information. The respondent also submits that the lengthy delay in seeking relief would be cogent basis to deny that release on discretionary grounds.
I have heard the applicant's explanation as to why he did not seek relief earlier and I am not satisfied that it would be sufficient to justify the Court exercising its jurisdiction to grant relief. A delay of over six years is an inordinately long time to refrain from commencing proceedings.
In any event it appears to me that the applicant's complaints contained in his amended application relate to his taking issues with factual findings made by the Tribunal.
In the decision of McHugh J in Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407, his honour pointed out the finding of fact was a matter for the decision maker par excellence. It is not the function of the Court on judicial review to rehear the application on the merits.
In my view the applicant cannot get around the fact that the Tribunal found him to not be a credible witness.
The finding of facts made by the Tribunal were open to it on the evidence and the question of the applicant's credibility is entirely one for the decision maker. I am not satisfied that a jurisdictional error has been shown. The decision under review is a privative clause decision under the provision of s.474 of the Migration Act.
In any event, even if I were satisfied that the decision was not a privative clause decision I would not see it as an occasion for exercising the Court's discretion to grant relief more than six years after the event.
The application is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 16 September 2005
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