SZGOB v Minister for Immigration
[2005] FMCA 1195
•5 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGOB v MINISTER FOR IMMIGRATION | [2005] FMCA 1195 |
| 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. PRACTICE & PROCEDURE – Competency – notice of objection to competency – application lodged out of time. |
| Migration Act 1958 (Cth), ss.74, 474, 477 |
| Applicant: | SZGOB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1588 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 August 2005 |
| Date of Last Submission: | 5 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Ms Caban Clayton Utz Lawyers |
ORDERS
The application is dismissed.
The application is not competent.
The Applicant is to pay the Respondent's costs fixed in the sum of $3,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1588 of 2005
| SZGOB |
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. The Tribunal conducted a hearing on 17 March 2004. The Tribunal made its decision on 30 March and handed that decision down on 22 April 2004. The Applicant says that he was unaware that the decision had been handed down until he was located by officers of the Department for Immigration & Multicultural & Indigenous Affairs on about 8 or 9 June this year.
He then brought an application for review of that decision which was filed on 20 June 2005. The respondent Minister has filed a Notice of Objection to Competency saying that the application is out of time. The Notice says that the decision that is sought to be reviewed is a privative clause decision under s.474 of the Migration Act. The respondent says that the Applicant was notified, or perhaps deemed to have been notified, of the decision on 22 April 2004.
Under s.477(1) (a) of the Migration Act, an application for review of a privative clause decision must be made within 28 days of the notification of the decision. The application has clearly been brought well outside the time limit provided by the Act.
The Applicant is a citizen of China. He entered Australia on this occasion on 19 October 2003. On 19 November of that year he lodged an application for a Protection Visa. That application, made through a migration agent, claimed that the Applicant had a well-founded fear of persecution because he was an active member of the Falun Gong group. A Delegate of the Minister refused the grant of a Protection Visa on 25 November 2003.
The Applicant sought review of that decision by means of an application lodged on 2 January 2004 and the Tribunal, not being satisfied that it could make a decision in the Applicant’s favour on the basis of the written material, invited him to attend a hearing on 17 March 2004. The Applicant attended that hearing and gave oral evidence. The Tribunal Member asked the Applicant a number of questions about his case.
The Applicant told the Tribunal that he was not in fact a Falun Gong practitioner. What he said was that he was a practitioner of a belief known as Yuanjigong. He said that the migration agent had made an error when filing his application. He did say that he had suffered difficulties because the Chinese authorities wrongly believed that he was a Falun Gong practitioner.
He also told the Tribunal that he had served in the army of the People’s Republic of China and during his military service he had been injected with a substance as part of an experiment conducted by the military authorities. He said that only members of ethnic minorities were required to participate in those experiments. He said that by revealing this information he could well be at risk upon his return to China.
He said that he did not wish his migration agent to attend the hearing because he did not want to disclose that information to her.
I note that on page 83 of the Court Book, the Tribunal Member asked the Applicant about a previous visit to Australia in the year 2001 when he stayed for one month. He had returned to China promptly within the time allowed by his visa. The Tribunal Member asked him why he returned to China at that time if he feared persecution. He told the Tribunal that he had an inadequate understanding of the law and he was a law-abiding person.
The decision of the Tribunal contains a detailed examination of the Applicant’s history as recounted in the Applicant’s evidence. The Tribunal was not satisfied about the credibility of the Applicant’s claim.
There are several references in the findings and reasons to the fact that the Tribunal Member was not satisfied as to the Applicant’s credibility. At page 84 of the Court Book at about point 7 the Tribunal said:
The Tribunal rejects that Applicant’s claims that he is a serious Yuanjigong practitioner and has been persecuted as a result. His claims that his employer did not distinguish between this group and the Falun Gong is unbelievable.
At page 85 of the Court Book at about point 3 the Tribunal says:
The Tribunal found the Applicant’s account of his problems in China to be entirely unconvincing. His claims simply lack credibility and have significantly changed since his application for protection was lodged.
At page 86 of the Court Book the second paragraph begins:
The Applicant has not given a credible account of how he was able to obtain his first passport which indicated that he was a manager and therefore employed.
At page 87 of the Court Book the Tribunal says, at the top of the page:
Finally, the Applicant has not given a plausible claim about why he might face problems if the information about Chinese government involvement in poisonous gas has been leaked.
In the Applicant’s application he makes three claims. First, he says that the Tribunal refused to grant his application without any proper grounds and proper investigation. Second, he says that the Refugee Review Tribunal member failed to understand his claims and failed to consider relevant matters. Third, he says that he is a citizen of China and if he goes back to his country he will be at risk of suffering persecution.
The Applicant also submitted today that the Tribunal Member was clearly suffering from a bad cold and was in no fit condition to conduct the hearing. I asked the Applicant to expand on the grounds which were contained in his application. In fairness to him, I note that his application was prepared for him by another person as he is not able to write English. He says that the Tribunal did not ask him to provide any evidence to support his claims. His complaint is that the Refugee Review Tribunal failed to ask him to provide that evidence and that was the point that he was most unsatisfied with.
The fact is that it was up to the Applicant to provide evidence in support of his claim for a Protection Visa. It is clear that he gave oral evidence and was asked a number of questions by the Tribunal Member which he was able to answer. Unfortunately for him, the Tribunal did not accept the credibility of a number of his answers. It is well established that there is no obligation on the part of the Tribunal to conduct its own independent investigation of an applicant’s claims.
Turning to the Applicant’s claim that the Tribunal failed to understand his claims and failed to consider relevant material, I am not satisfied that there is any evidence of any failure to consider relevant matters by the Tribunal Member. The decision by the Tribunal contains a thorough outline of the Applicant’s history and it contains reasons why the Tribunal did not accept his case.
It is quite clear that the Applicant was able to submit a written statement to the Refugee Review Tribunal prior to the hearing. That statement is apparently prepared by his migration agent. That statement sets out the Applicant’s claim. The Applicant was able to submit other documents at the hearing and he gave oral evidence.
I cannot find any sign that the Tribunal Member failed to understand the Applicant’s claim.
The third ground in the Applicant’s application does no more than assert that the Applicant complies with the definition of a refugee under the Convention and would be at risk of suffering persecution for a Convention reason if he were to return to his own country. It is of course not the function of the Court to reconsider factual matters, as fact finding is solely the province of the decision-maker.
Turning to the Applicant’s claim brought at the hearing that the Tribunal Member was not in a fit state to consider his application as he was suffering from a bad cold, there is, as Ms Caban for the respondent submits, no evidence in support of that. It is unfortunately true in this jurisdiction that there is a heavy pressure on the Refugee Review Tribunal and on the Federal Magistrates Court and on lawyers who appear in the Federal Magistrates Court to do everything possible to see that refugee claims are heard as swiftly as possible.
In an ideal world, if the Tribunal Member was suffering from a bad cold I have no doubt that he would have been delighted to have stayed at home and stayed in bed for the day. All too many of us, however, feel compelled to soldier on, even though we are suffering from minor ailments, in an effort to deal with what appears to be a never ending caseload. The fact is that there is no evidence from the hearing that the Tribunal Member was in any way impeded by a cold or upper respiratory tract infection that prevented him from understanding and considering the Applicant’s case.
The Applicant says that he was not aware of the unfavourable decision until he was located by officers of the Department and taken into Immigration detention early in June. He did have a migration agent acting for him and there is evidence that the Refugee Review Tribunal wrote to the applicant on 22 April to a post office box number at Campsie, New South Wales, and also to the office of his migration agent.
There is no evidence that the Refugee Review Tribunal was aware that the migration agent was no longer acting for the Applicant, as he says, and it is quite clear from pages 62 and 63 of the Court Book that the Applicant’s last known address was Post Office Box 660, Campsie, which information was provided to the Tribunal on 17 March 2004, the day of the hearing.
The Applicant blames his migration agent for not providing him with a copy of the decision. If indeed he had dispensed with her services, it is hard to see why she had any obligation to provide him with a copy, but in any event, there is evidence that a copy of the decision was sent to the Applicant’s last known postal address which had been provided to the Tribunal on the day of the hearing.
The Applicant is not legally represented today. I have read through the decision of the Tribunal in detail in order to ascertain whether there is any sign of a jurisdictional error that may not have been apparent to the Applicant. I cannot find any such error. The grounds given by the Applicant in his application do not show any jurisdictional error, nor does the claim made orally at the hearing today about the Tribunal Member’s state of health provide any evidence of error.
The fact is that the Tribunal did not accept the credibility of the Applicant’s account on a factual basis. As I have earlier indicated, there are several clear statements in the Tribunal decision where the credibility of the key points in the applicant’s case have been clearly rejected by the Tribunal. Findings of fact are solely a matter for the Tribunal. There is nothing to indicate any error in the Tribunal’s approach to its task of fact finding.
There is no reviewable error. The decision by the Tribunal is a privative clause decision as provided by s.74(2) of the Migration Act. The application is clearly out of time. It was not made within the
28-day time limit as set out by s.477(1A) of the Migration Act. In any event, the delay in bringing an application, being a delay in excess of one year, is one which, even if I were satisfied there was a ground of relief, it would make me at the very least reluctant to exercise a discretion to grant that relief in favour of the Applicant.
The reality is that the applicant has only brought this claim because he was located by officers of the Department and community and he was taken into Immigration detention.
There is an application for costs. The Applicant has been wholly unsuccessful in his claim and to my mind the order for costs should be made. The amount sought is a lump sum of $3,800.00. This is a matter that has not involved the briefing of counsel and in my view this was not a case that required counsel to be briefed as the solicitor handling the matter, Ms Caban, appeared to be perfectly able to present the issues to the Court in an acceptable way.
The sum of $3,800.00 which is sought is clearly within the range of costs for a matter of this type as envisaged by the Federal Magistrates Court Rules 2001. I propose to make a costs order in that amount.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 17 August 2005
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