SZGOV v Minister for Immigration
[2006] FMCA 1424
•6 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGOV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1424 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 483A |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 M55 v Minister for Immigration [2005] FCA 131 SZCJY v Minister for Immigration [2006) FCA 556 SZEEU v Minister for Immigration [2006] FCA FC 2 |
| Applicant: | SZGOV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1640 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 14 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Mr P Reynolds |
| Solicitors for the Respondents: | Clayton Utz Solicitors |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application is dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1640 of 2005
| SZGOV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 24 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 28 April 2005 and handed down on 18 May 2005, affirming a decision of the delegate of the first respondent made on 27 January 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGOV”.
Background
The Tribunal decision of Mr Rodney Inder, reference N05/50675, provides the following background information. The applicant, who claims to be a citizen of the People's Republic of China (“the PRC”) arrived in Australia on 10 October 2004. On 24 November 2004, she lodged an application for a Protection (class XA) visa with the Department of Immigration under the Act. On 27 January 2005, a delegate of the Minister refused to grant a protection visa and on 28 February 2005, the applicant applied to the Tribunal for review of the delegate's decision.(Court Book (“CB”) 82)
The applicant claims she has a well-founded fear of persecution on the basis of her religion. She claims to be Christian and a member of an underground church in the PRC known as "Shouters" which is regarded as an illegal and anti-government religious organization by the authorities. She included with her protection visa application, a five page statutory declaration setting out her claims.(CB 24-28) To her Tribunal review application, the applicant attached a four and a half page statement setting out her claims.(CB 55-59) The applicant appeared at the Tribunal hearing on 27 April 2005 at which she gave oral evidence.
Tribunal’s Findings and Reasons
A convenient summary of the Tribunal's reasons is contained in the first respondent's written submissions prepared by Mr Reynolds.
I adopt paragraphs 5 to 12 of those submissions.
5.The Tribunal accepted that the applicant was a citizen of the PRC and was the person whom she claimed to be.
6.The Tribunal considered that the applicant's claims to be a Christian, a claim on which all of her other claims rested, was not ‘demonstrated’ in her application to the Minister's delegate for a protection visa nor her application to the Tribunal for review of the delegate's decision. Accordingly, at the hearing, the Tribunal explored for itself the applicant's faith and the knowledge of Christianity. In so exploring, the Tribunal made the following findings and comments:
(a) the applicant claimed (at the hearing) that her role in the underground church was much more than that of an ordinary member in that she distributed some "special religious propaganda material" to the Christian community in Fuzhou and was the "bridge’ between the "secret propaganda centre" in Guangzhou and the distribution Fuzhou. However, the applicant's evidence (later in the hearing) changed from transporting 3000 copies of material to transferring one copy and then republishing it in Fuzhou.
(b) throughout the hearing the Tribunal attempted a number of ways to encourage the applicant to disclose her beliefs and the Gospel message but the applicant failed to give any indication that she had any real belief in Christianity;
(c) the applicant provided no evidence that she was baptised as a Christian in the PRC. In any event the Tribunal gave the applicant the benefit of the doubt and accepted that she believed that she was a Christian; and
(d) the Tribunal was not able to satisfy itself that she was in any way a leader or organiser or trafficker of material for the Shouters Church or performed any significant role in the Shouter Church. That finding was based on the unsupported claims made by the applicant taken together with the applicant’s extremely limited knowledge of the Bible and Christianity itself.
7.Based on this findings in relation to the applicant's knowledge and the level of participation in the Shouters Church, the Tribunal found that the applicant had embellished her claims in order to enhance her claims for a protection visa. The Tribunal found it followed from it's findings above that the applicant was not a credible witness (CB 94.7).
8.The Tribunal noted that the applicant's claims that she was baptised in Sydney on 30 January 2005. It explored the reasons why the applicant claimed that she had also been baptised as a child in the PRC, found that the claim in relation to the baptism in Sydney had been made in furtherance of her refugee claims and held that it would disregard that conduct pursuant to section 91R(3)(b) of the Migration Act 1958 (“the Act”). (CB 95.2)
9.The Tribunal examined whether the applicant would experience serious harm amounting to persecution for a Convention reason if she returned to the PRC. It noted the independent country information which indicated that:
(a) The Constitution of the PRC provides for freedom of religious beliefs;
(b) The supervision of religious activity in the PRC was minimal and unregistered and registered churches were treated similarly by the authorities;
(c) Christianity is growing quickly in the PRC, faster maybe than any other part of the world;
(d) Church pews are packed to capacity and an internal PRC government survey found that there were at least 3,000 unregistered churches in Beijing alone.(CB 95.3)
10.On the basis of the independent country information, which the Tribunal preferred above that of the applicant's evidence, the Tribunal was not satisfied that there was a real chance that the applicant would be subjected to serious harm amounting to persecution for a Convention reason because she is a Christian and a member of the Shouters underground Church.(CB 96.1)
11.The Tribunal found that the following claims by the applicant contradictory and unreliable on the basis that the applicant had been issued with a passport in her own name with her personal particulars in it:
(a) she was questioned by two Public Service Bureau ("PSB") officers;
(b) she was again questioned twice in the local police station and once in the Fuzhou PSB;
(c) in July 2001she was formally dismissed from the Fuzhou Commercial School and denounced as she spread the "story of the Bible"; and
(d) on 28 January 2004 the PSB police surrounded the book shop and she along with others were taken to the PSB in Guangtou town and ‘subjected to investigation by and were detained until 20 February 2004.
12.The Tribunal was further satisfied that if the applicant had a well-founded fear of serious harm amounting to persecution as a result of her 3 week detention and interrogations, she would have departed the PRC immediately upon obtaining a passport and would not have waited a further 6 months before doing so.(CB 98.2)
Application for Review of the Tribunal’s Decision
On 24 June 2005, the applicant filed an application for review in this Court under s.39B of the Judiciary Act, which contained the following ground:
a)The Refugee Tribunal committed a legal error when reviewing the applicant's application for a protection visa.
Reasons
The applicant is a self-represented litigant and appears with the assistance of a Mandarin interpreter. At the first Court date directions hearing before Registrar Kavallaris, consent orders were made that the applicant file and serve an amended application giving complete particulars of each ground of review relied upon by 8 December 2005. The applicant also indicated her desire to participate in the Court's free legal advice scheme and was subsequently allocated a panel advisor.
A letter on the Court file indicates that the panel advisor had a conference with the applicant to provide her with legal advice. However, no amended application has been filed nor any written submissions or affidavit material in support of the application.
At the final hearing in this Court when the applicant was invited to make oral submissions in support of her application, she made a number of confused enquiries as to the purpose of the hearing and what she was required to say to the Court. The nature and function of the Court hearing was briefly explained to the applicant. However the applicant was unfortunately unable to make any submissions.
She appeared to have little comprehension of the purpose of the hearing.
Mr Reynolds states in his written submissions that it is not possible for the first respondent to discern the error alleged by the applicant in the absence of any particulars of this ground of review, or any written or oral submissions in relation to the ground alleged. However for completeness, the first respondent raises the following matters as warranting the Court's consideration. If the applicant complains that she was not afforded procedural fairness by the Tribunal's reliance on information in the applicant's passport, the first respondent submits that the Tribunal is not required to provide particulars of that information in compliance with s.424A(1) of the Act. I note that the applicant provided a copy of her passport to the Tribunal at the hearing.
In a letter dated 17 March 2005 and addressed to the applicant's agent, Priscilla Yu of Priscilla International Co, the Tribunal invited the applicant to a Tribunal hearing on 27 April 2005. As part of that invitation letter it advised "if you have a passport you should bring it to the hearing". In the Tribunal's “Findings and Reasons” there is a comment in respect of the passport which states "on the basis of his (her) Chinese passport sighted at the hearing".(CB 92) The finding that the Tribunal made from the passport was that the applicant's claims of torture, mistreatment and abuse contradicted the fact that she did not attempt to leave the PRC when her passport was issued on 25 March 2004, but was satisfied to remain there for a further six months.
The Tribunal found this inconsistent with her claim of persecution.
If the passport information was the reason or part of the reason for affirming the decision under review, the Tribunal would be required to furnish the applicant with a s.424A(1) notice in writing if it did not fall within one of the exceptions under s.424A(3) of the Act: SZEEU v Minister for Immigration (2006) FCAFC 2 at [51]-[52]. As the passport was provided to the Tribunal during the oral hearing, that information falls within the exception of s.424A(3)(b) of the Act.
Mr Reynolds submits that insofar as the applicant complains that the Tribunal relied on information provided by the applicant in her protection visa application, the applicant provided that information to the Tribunal. She also invited the Tribunal to analyse that information by virtue her statement attached to the Tribunal application.(CB 55-59) This statement repeated a number of the applicant’s claims and critically analysed the reasons given by the delegate. Mr Reynolds submits that the applicant invited the Tribunal to review the entire protection visa application and new information had been provided by the applicant to the Tribunal pursuant to s.424A(3)(b) of the Act: M55 v Minister for Immigration (2005) FCA 131; SZCJY v Minister for Immigration (2006) FCA 556.
Conclusion
The applicant appeared before this Court as a self-represented litigant with a single ground of review which does not identify any particular jurisdictional error and is without particularisation. Therefore, the Court is under an obligation to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney and Ors (2002) FCA 186. I note that the applicant has been represented by a registered migration agent, although the preparation for this Court hearing does not assist.
The applicant had the opportunity to participate in the panel advice scheme but, subsequent to that advice, the applicant did not develop the arguments in her application. To fulfil the Court's obligation, I have considered the material contained in the Court Book and the Tribunal decision. Mr Reynolds assisted the Court by addressing the issues that may arise if the Tribunal had not observed Pt.7 Div.4 of the Act, although there was no claim by the applicant specific to this Part of the Act. It is not apparent that any other ground of review exists that suggests the Tribunal made a jurisdictional error in its decision-making process. The applicant's claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 4 October 2006
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