SZGMM v Minister for Immigration

[2005] FMCA 1482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGMM v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1482

MIGRATION – RRT decision – Chinese applicant fearing persecution for political activities – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.483A, Pt.8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 cl.8

SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773
SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416

Applicant: SZGMM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1495 of 2005

Judgment of: Smith FM

Hearing date: 29 September 2005

Delivered at: Sydney

Delivered on: 29 September 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Bird

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $3,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1495 of 2005

SZGMM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders setting aside a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 June 1999 and handed down on that day.  The Tribunal affirmed a decision of the delegate made on 9 November 1998 refusing an application for a protection visa made by the applicant on 16 September 1998.  He had arrived in Australia on a one month visitor’s visa shortly before then. 

2. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction to make the orders sought by the applicant is under s.39B of the Judiciary Act 1903 (Cth) which gives powers comparable to the High Court’s powers of judicial review under the Constitution of Australia. I am informed by the solicitor for the Minister that the applicant was, at the time of the commencement of the current limitations under Part 8 of the Migration Act, a party to proceedings in the High Court from which he withdrew in June 2003. The effect is that his present application is not subject to limitations by reference to whether the Tribunal’s decision was a privative clause decision (see cl.8 of Sch.1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), as interpreted in SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 at [12], and SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773 at [33]). However, to obtain orders that the Tribunal must reconsider his case, the applicant must satisfy me that the Tribunal failed to exercise its jurisdiction to review the delegate’s decision according to law. Before setting aside the Tribunal’s decision, I must be satisfied that its procedures or reasoning were materially affected by legal error.

3. The applicant’s claims for protection from Australia against being returned to his country of nationality, The People’s Republic of China (“PRC”), were contained in a two‑page typed statement attached to his visa application.  He was assisted in that application and in his subsequent application for review by a migration agent. 

4. In short, his statement claimed that he was “born into a Chinese capitalist family” which was discriminated against “and fell victim to the prosecution” after the takeover of the Communist Party and in particular during the Cultural Revolution.  The applicant was born in the mid‑1950’s, and was sent to do heavy labour.  He says that he “started to organize some young workers and we listened to foreign radio stations”, but: 

   In 1976 our activity was found out by the Chinese government and I was arrested and shut up.  A year later, I was sentenced to a year and a half prison.  The charge was tuning in to enemy radio station and organizing secret anti‑government gang. 

5. The applicant said he was released in 1978 and returned to his work unit, but was subject to restrictions.  He said he was sacked in 1991 after requesting improvements to his situation.  He then “organized some young people and set up “Chinese Free Youth Democratic Society””.  He said these activities were “very confidential”, but “from Oct 1997 we felt we were being watched”, and in April 1998 he was told by a friend working in the Public Security Bureau “that our organization was blacklisted”.  He then decided to leave China, and “with the help of my friends, I got my passport and visa”. 

6. The applicant was interviewed by a department officer before a decision was made.  In his reasons for refusing the application, the delegate thought that there were contradictions between what the applicant had said at interview compared to his written claims.  The delegate also considered that the fact that the applicant obtained a passport and left the country lawfully indicated that he was not sought by the authorities. 

7. The applicant supported his review application with a further typed statement, but no further evidence.  He attended a hearing by the Tribunal on 8 June 1999.  The transcript is not in evidence but the Tribunal gives a brief description of the hearing. 

8. The applicant told the Tribunal that his political organisation set up in 1992 contained himself and three friends.  These friends had left the country by 1997, and the meetings ceased in that year.  The Tribunal said: 

   The Tribunal asked the applicant if he had any difficulties with the authorities, regarding his political activities, between 1992 when the group was established and 1998 when he left the country.  He stated that he had no contact with the authorities during that period. 

9. The applicant explained to the Tribunal why he thought he was not approached by the authorities.  The Tribunal said that it discussed with the applicant country information concerning the treatment of political activists in China.  It put to the applicant that the description of his activities might not satisfy it that he would be of interest or concern. 

10. In its reasoning, the Tribunal said that it had concluded that some claims made by the applicant lacked credibility.  In particular, the Tribunal did not accept that he was of interest and concern to the PRC authorities because he was involved in political activities from 1992 to 1997.  Nor did the Tribunal accept the credibility of his “associated claim” regarding harassment and torture of members of his family after he left the country because of his previous political activities.  It gave reasons for forming those views which are not irrational and in my view were open to it.  The Tribunal’s conclusion was: 

    In the absence of further information from the applicant, regarding his claim that he attracted the adverse attention of the PRC authorities due to his previous political activities, the Tribunal is not satisfied that the claim is credible. 

11. The Tribunal considered country information indicating that the PRC government was targeting “those who persist in expressing their dissenting view once they return to China” if they had a past history of political activism.  However, it said: 

    After considering all the information relevant to this matter, the Tribunal is not satisfied that the applicant is a political activist at risk of attracting the adverse attention of the PRC authorities due to his political opinion.  The Tribunal has decided that the applicant does not have a well‑founded fear of persecution within the meaning of the Convention. 

12. The Tribunal’s reasoning therefore turned on its assessment of the credibility of the significant claims made by the applicant as to his past history in China.  In essence, it rejected their credibility.  In my view, its reasoning does not reveal any misapprehension of the applicant’s claims, nor of the law of which it was obliged to apply when assessing that history.  I have been unable to identify any error of law or procedure affecting the Tribunal’s decision.  I am not satisfied that the applicant has made out a ground for the relief he seeks. 

13. The applicant was sent the Tribunal’s decision in July 1999.  As I have indicated above, he later participated in proceedings in the High Court which came to an end in 2003.  He has not explained in any material he has presented to the Court his delay in seeking relief from the Court.  He is now in immigration detention while his matter is before the Court.  He has been referred for advice under the free legal scheme. 

14. The applicant has filed only one document in the Court, being his original application.  This contains four paragraphs under the section inviting the grounds of the application to be given.  The first paragraph repeats his concern that he is at risk of persecution, but as I have indicated to him it is not the task of the Court to consider afresh whether he is at risk. 

15. Paragraph 2 says:  

    “Member of R.R.T. failed to understand my claims and failed to consider relevant matters, further particulars to be provided”. 

    No particulars have been provided, and the applicant today declined to develop any argument in support of his case.  As I have indicated, on my assessment of the material and the Tribunal’s reasons it did sufficiently understand and consider his claims. 

16. Paragraph 3 has a general assertion: 

    “I was not afforded natural justice”. 

    No details of this complaint have been given to me, and I am not satisfied that any departure from procedural fairness occurred.  

17. Paragraph 4 has the general assertion: 

    The respondent refused to grant my protection visa application without any proper grounds and investigation. 

    Assuming the reference to respondent would be understood as a reference to the Tribunal, I still cannot understand what specific criticism is made of the Tribunal.  On my assessment of the matter the Tribunal has refused the application on legally sufficient grounds, and has performed such investigation as the law required. 

18. For the above reasons I have not found grounds raised by the applicant to support writs of certiorari, prohibition or mandamus.  Nor do I think that the Tribunal’s decision was in excess of jurisdiction.  I do not consider that the applicant has established any entitlement to the relief he seeks from this Court. 

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  11 October 2005