SZGUW and Minister for Immigration and Anor

Case •

[2007] FMCA 1120

•

4 July 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGUW & MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1120
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of the People's Republic of China claiming fear of persecution – credibility – no reviewable error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424A, 425. 474
Applicant: SZGUW
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3811 of 2006
Judgment of: Scarlett FM
Hearing date: 4 July 2007
Date of last submission: 4 July 2007
Delivered at: Sydney
Delivered on: 4 July 2007

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Broderick
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3811 of 2006

SZGUW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application to review a decision of the Refugee Review Tribunal. The decision was signed on 17th November and handed down on 7th December 2006. The Tribunal affirmed the decision of a Delegate of the Minister not to grant the Applicant a protection visa.  The Applicant by means of an application and an affidavit filed on 20th December 2006 seeks judicial review of that decision.

Background

  1. The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 12th December 2004.  He applied for a Protection (Class XA) Visa on 20th January 2005. On 23rd February in that year a Delegate of the Minister refused the application for a visa. The Applicant then sought a review of that decision from the Refugee Review Tribunal. On 7th June 2005 the Refugee Review Tribunal, differently constituted, affirmed the Delegate's decision.

  2. The Applicant sought judicial review of that decision from the Federal Magistrates Court. On 27th July 2006 Emmett FM made orders by consent granting the application and issuing writs in the nature of certiorari and mandamus requiring the Refugee Review Tribunal to determine the matter according to law.  For some unexplained reason the Tribunal decision refers to the consent orders having been made on 2nd May 2006 but a perusal of her Honour's orders indicates that they were in fact made on 27th July in that year. 

  3. The Tribunal wrote to the Applicant on 31st August 2006 advising him of the Court's decision.  In that letter the Tribunal relevantly said:

    You are invited to provide any documents or written arguments you wish the Tribunal to consider which you have not already provided to the Tribunal.  Any documents should be provided as soon as possible. Any documents not in English should be translated by a qualified translator.  You should send both the documents and the translations.[1]

    [1] See Court Book at page 69.

  4. The Applicant advised the Tribunal on 11th September 2006 of a change to his address.  The address and postal address which he gave are identical to those that appear on his amended application to this Court filed on 27th March 2007. On 20th September 2006 the Tribunal wrote to the Applicant inviting him to attend a hearing on 26th October.  In that letter the Tribunal invited the Applicant to not only inform the Tribunal if he wished to attend and wished the Tribunal to hear evidence from the witness but:

    Send us any new documents or written arguments you want the Tribunal to consider.  Please note any documents or arguments you send should be in English or translated by a qualified translator.[2]

    [2] See Court Book at page 73.

  5. The Applicant completed the Response to Hearing Invitation indicating that he wished to attend the hearing and required the assistance of an interpreter in the Mandarin language.  He did in fact attend the hearing and provided his passport issued by the People's Republic of China. 

  6. The Tribunal wrote to the Applicant on 26th October, the date of the hearing, under the provisions of s.424A of the Migration Act inviting him to comment on information. The Tribunal said in the letter that the information would, subject to any comments that he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The relevant paragraphs of the letter are these:

    In your statement to the Department you had stated that your house was demolished in 2000 and your possessions confiscated.  At the hearing, however, you stated that you lived at the same address and on a piece of land you own from 1998 until your departure from China. 

    The above information is relevant because the Tribunal made draw an adverse credibility finding on the basis of any inconsistencies between the information provided in your Departmental file and the information provided to the Tribunal.[3]

    [3] See Court Book at page 83.

  7. The Applicant replied to that letter by means of a letter dated
    10 November 2006.  He referred to the house saying:

    It is true that I said the house was demolished in 2000 in my statement.  It cannot be lived until I repaired it.  You know in countryside the land and the house are my life; where can I live else.[4]

    He did go on to tell the Tribunal that he had lived in the home of his wife's parents after he was married. 

    [4] See Court Book at page 85.

  8. The Tribunal handed down its decision on 7th December 2006.  A copy of the Tribunal decision record can be found at pages 89 through to 104 of the Court Book.  In the decision the Tribunal referred to the earlier Tribunal hearing noting that the Applicant had not attended that hearing. 

  9. The Tribunal summarised the Applicant's claim about his residential address and how he worked as a farmer and how he claimed that his land had been confiscated and the Tribunal referred to the s.424A letter about the demolition of his house and the Applicant's reply. The Tribunal also referred to Independent Country Information on the variety of issues.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons can be found at page 100 through to 104 of the Court Book.  The Tribunal accepted that the Applicant was a national of China and accepted that the Applicant's land was among other farm lands confiscated by the government in favour of developers in 1992.

  2. The Tribunal was not satisfied that the Applicant suffered serious harm, including serious economic harm because he had continued to farm on land that he owned in his village and subsequently elsewhere and earned a reasonable salary by selling his produce to the wholesale market and did not claim to have suffered economic hardship as a result.

  3. The Tribunal also found that the evidence before the Tribunal did not suggest that the act of confiscation had been carried out for any Convention reason, including the Applicant's membership of a particular social group of farmers or land owners in Fujian or farmers or land owners in Fuqing City or farmers or land owners in Fuqing Rongiao economic and technological development zone. 

  4. The Tribunal considered that the confiscation was an opportunistic, if not a criminal act, by the local government and the developers and the Tribunal was not satisfied that the confiscation of the Applicant's land amounted to serious hardship for a Convention reason. The Tribunal analysed the Applicant's claims about the demolition of his house and after considering his response to the s.424A letter, was still not satisfied that the Applicant's house was demolished and his belongings confiscated in 2000 as he had claimed in his written submissions.

  5. The Tribunal considered the Applicant's claims about having been detained and eventually released from detention without charge and noted the evidence about the Applicant's ability to obtain a passport and to depart China legally. The Tribunal found the Applicant's explanation at the time of the hearing to be ‘completely unsatisfactory’.

  6. The Tribunal was not satisfied that the Applicant's chance of facing persecution for the reasons of his political opinion, membership of a particular social group or any other Convention reason in China was real. 

  7. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) Visa. 

The Application for judicial review

  1. The Applicant seeks judicial review of that decision and filed an amended application on 27th March 2007. The grounds of the application that he gives are:

    1. I just received my Green Book. I will make an appointment with the legal adviser.

    2. The RRT Tribunal did not give any new reasons for their decision, and based the decision on the former Tribunal's decision.

  2. I have had the benefit of reading a written outline of submissions on behalf of the Respondent Minister and an affidavit of Gemma Ann Broderick, solicitor, sworn 20th June 2007 to which a copy of the Tribunal's earlier decision, signed on 7th June and handed down on 28th June 2005 is annexed.  The Applicant made oral submissions to the Court. He sought to tender a photograph of his damaged house in China which he said he had only recently been able to obtain.

  3. I declined to accept the tender of that document on that basis that it appeared to be, and in fact was said to be, fresh evidence that had not been available to the Refugee Review Tribunal.  The Applicant claimed that he did not have time to have the evidence ready beforehand and had not been given sufficient time by the Tribunal. He asked for another chance to have his material ready for the Tribunal.

  4. I am not prepared to accede to that application, noting that the Applicant has been in Australia since 12th December 2004 and has had not one, but two hearings before the Refugee Review Tribunal.  I am not satisfied that he has been given insufficient time to prepare his case for the Tribunal hearing.  The Applicant also complained that he did not have a chance to meet the legal adviser made available under the Tribunal's Panel Legal Advice Scheme.

  5. A perusal of the Court file indicates that the legal adviser allocated, Mr Johnson of counsel wrote to the Court on 23rd March and the thrust of his letter is that he attempted to contact the Applicant on three occasions between the 12th and 23rd March without success and that he wrote to the Applicant at the Applicant's Post Office Box on 12th March but has not heard from the Applicant. The Applicant explained that he had been working out of Sydney at the time.

  6. In my view that is unfortunate but it is not a matter that would lead to any adjournment.  The Applicant was aware that he would be contacted by a legal adviser and should have made arrangements so that he could seek and obtain that legal advice.  The Applicant appeared to be of the view that the Tribunal's scepticism of his claim to have had his house demolished in 2000 was something that had been only recently brought to his attention and he had not had sufficient time to meet it.

  7. In my view the matter was canvassed at the Tribunal hearing and indeed formed the subject of a letter to the Applicant under s.424A of the Migration Act to which I have previously referred, and the Applicant was given the opportunity to reply to it. In any event, I note from the copy of the earlier Tribunal decision annexed to Ms Broderick's affidavit that the Applicant's claim that his house was demolished was in fact referred to in the earlier Tribunal decision. The Tribunal Member in that decision expressed some doubt about the claim, at page 7 of the decision saying:

    Apart from the credibility issues arising from these inconsistencies, it is not clear from this that the applicant has in fact lost either his home or his livelihood.

  8. I note that the Applicant did not attend the earlier Tribunal hearing and the matter was dealt with under the provisions of s.426A of the Migration Act nevertheless I am of the view that the scepticism expressed by the Tribunal Member in the earlier decision was a matter that was well and truly brought to the Applicant's attention and the issue, as I said, was certainly canvassed in some detail by the Tribunal during the hearing and also after it.

  9. In my view no jurisdictional error has been made out. I am mindful of the fact that the Applicant was not legally represented in the proceedings today. I have read through the Tribunal decision carefully in order to satisfy myself that no arguable case for another jurisdictional error not referred to by either of the parties may appear. I am satisfied there is no jurisdictional error. There is certainly no breach of s.424A of the Migration Act.

  10. The Tribunal in its letter to the Applicant dealt with that - dealt with the information that was a cause of concern and gave the opportunity to the Applicant to comment, an opportunity with the Applicant took. The Applicant's replies were considered in the Tribunal decision. There is no breach of s.424A. Similarly there is no breach of s.425 of the Migration Act. The Tribunal wrote to the Applicant and invited him to attend the hearing. He attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language but the issue relating to the demolition of his house and the Tribunal scepticism was well and truly canvassed at the hearing. There is, to my mind, no breach of s.425. There is no denial of natural justice or any procedural error that I can ascertain.

  11. As there is no jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act.  Consequently the application will be dismissed. 

  12. I note that an order has previously been made amending the title of the First Respondent to Minister for Immigration & Citizenship.

  13. There is an application for costs on behalf of the First Respondent Minister. The Applicant has been wholly unsuccessful in his claim and in my view a costs order is appropriate. The amount sought is $3,200.00 which is an appropriate figure and well within the scale provided by the Federal Magistrates Court Rules.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  12 July 2007


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