SZGYX v Minister for Immigration

[2007] FMCA 477

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGYX v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 477

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

Applicant: SZGYX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2184 of 2005

Judgment of: Lloyd-Jones FM

Hearing date: 7 March 2007

Delivered at: Sydney

Delivered on: 5 April 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents: Mr J Smith

Solicitor for the Respondents: Ms M Matersarti of Clayton Utz

ORDERS

1. The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

2. The application filed on 15 August 2005 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2184 of 2005

SZGYX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. 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 15 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 28 June 2005 and handed down on 19 July 2005, affirming a decision of the delegate of the first respondent made on 28 February 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.

2. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGYX”.

3. A Court Book ("CB") prepared by the respondent's solicitors was filed on 14 October 2005.  I have marked this Exhibit “A”, and it was read into evidence.

Background

1. The Tribunal decision of Mr S Norman, reference number N05/05934, provides the following background information. The applicant claims to be a citizen of the People's Republic of China (“the PRC”) and arrived in Australia on 19 December 2004. On 27 January 2005, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 28 February 2005, a delegate of the Minister refused to grant a protection visa and on 1 April 2005, the applicant applied to the Tribunal for review of the delegate's decision.(CB 81)

2. The applicant claims to be a self‑employed builder who in 2001 went to Xizhang to "learn to do business".  In February 2003, a government official went to his company to discuss business.  The applicant claims he was offered a large project in Xizhang but he had to pay a large commission to the government official.  The applicant declined the work as it was illegal.  A few weeks later, he found out that the work had been contracted to another construction company.  In July 2003, another government official visited the applicant.  They discussed another building project in Xizhang but again the official wanted money from the applicant to assign him the project.  Again the applicant refused.  At this point, the applicant realised his business was deteriorating and would not continue if he kept refusing to pay government officials.(CB 83)

3. The applicant decided to report the above matters to the Building Construction Management Bureau in Xizhang.  He did not hear anything from the Bureau for a few months so reported the matter again.  A few days after the second report, the police went a warrant and searched his company and his home.  The applicant claims the police then detained him for two and a half months and he was “tormented physically and mentally”.  He claims that this was a political tactic because they did not want him to disclose “their corruption network”.  The police tried to formally charge him for “short material for a building construction project [his company] did before”.  His wife borrowed money from friends and relatives to bribe the state officials to get him out of detention.  After he was released, he returned to Fujian in December 2003.  The applicant hoped to set up his business in Fujian but he was refused a licence.  He claims his application for a licence was refused because the Xizhang government had informed the Fujian government about his complaints in Xizhang.   He also believes he was being expelled from the construction industry permanently.(CB 84)

Tribunal’s findings and reasons

1. The Tribunal's reasons for affirming the delegate’s decision are effectively summarised in the Tribunal's decision in the following passage:

   I am satisfied there were legitimate reasons for denying the applicant continuing work as a self‑employed contractor in the building industry in PRC.  The use of wet cement required in the construction of buildings weakens the structure and potentially makes the structure unsafe, such that future accidents resulting in loss of life may ensue.  If the applicant was denied the ability to continue as a self‑employed builder either in Xizhang or Fuchin (or elsewhere), the reason of his breach of the building laws in Xizhang.  I am satisfied this, without more, does not involve refugee protection obligations in Australia.  That is I am not satisfied the applicant is being targeted for a Convention reason.  Notwithstanding his claim to have exposed corruption by local government officials in the PRC, based on his claims, I am satisfied his release and subsequent rejection regarding his continuation as a self‑employed building contractor in the PRC, was for reasons of his own corrupt practices in the PRC.(CB 90)

Application for review of the Tribunal’s decision

1. On 15 August 2005, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with leave granted at the first Court date, the applicant filed an amended application on 23 November 2005 and then a second amended application on 25 May 2006. The second amended application contains the following ground of review:

   (1)The Tribunal failed to carry out its statutory duty.

   (a) the only information before the tribunal was that contained in the first respondent's file and that given to the tribunal by the applicant

   (b) the tribunal was required to provide particulars of the information that was the reason, or part of the reason, for affirming the decision. Migration Act 1958 s.424A. The tribunal also was required to explain why the information was relevant and provided the applicant with an opportunity to comment upon it.

   (c) the above particulars had to be provided in writing: SAAP v Minister for Immigration and Multicultural & Indigenous Affair (2005) HCA 24 per McHugh J at [68] and [77], Hayne J at [180] and [208]

   (d) the information to be given extends to that information given by the applicant to the first respondent as part of his application for a visa: Minister for  Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27 at [17] (e) the tribunal based its findings on the information, or lack of information, contained in the applicant's application for a visa and was required, by s.424A to give particulars of the information, explain why the information is relevant and provide the applicant with an opportunity to comment upon it.  The tribunal's failure to so act was a jurisdictional error.

Submissions and reasons

1. The applicant appeared self‑represented with the aid of a Mandarin/Fujian interpreter.  He confirmed that two amended applications were filed but he relied upon the one filed on 25 May 2006.  He had not filed any written submissions in support of his application.  When invited to make oral submissions, the applicant repeated briefly his involvement in the construction industry, his refusal to bribe government officials in order to obtain building projects, and the police investigation into his business.

2. The substance of the applicant’s oral submissions had been previously ventilated in his original visa application and again before the Tribunal at its hearing.

3. Mr Smith, appearing for the respondents, submits that the only ground in the applicant's further amended application is that the Tribunal failed to comply with s.424A of the Act. This ground asserts that the Tribunal decision was based on information (or lack of information) contained in the applicant’s visa application. Mr Smith submits that the assertion is incorrect – the Tribunal rejected the application for review because it found that the reason for the harm that may be suffered was not Convention-related but rather because of the applicant’s own corrupt practice.(CB 90.3) That finding was based on evidence given by the applicant at the hearing(CB 86.2) and for the purpose of the review which thus fell within s.424A(3)(b) of the Act. Mr Smith submits that for this reason, there was no obligation on the Tribunal under s.424A and there is no jurisdictional error in the Tribunal's decision.

4. The original visa application filed by the applicant contains a half‑paged typed statement which briefly sets out his claims.  In explaining the difficulties he had with the Chinese authorities and the reports he had filed with the Construction Management Bureau, the applicant included a brief statement:

   They tried to formally charge me for short materials for building construction for a project we did before.(CB 27)

5. There is no further explanation about the investigations or what material was short supplied.  The Tribunal decision indicates that the applicant gave oral evidence on 28 June 2005.(CB 84)  When questioned by the Tribunal member on the alleged charge of “short materials”, the applicant replied that the investigations were into the use of concrete in buildings that did not meet the building requirements of Xizhang.  In effect, he was investigated for the use of understrength concrete within the construction and not meeting building regulations in relation to the concrete mix.  The Tribunal gave the reason that the applicant was denied a builder licence due to his own corrupt practice in breaching the regulations.

Conclusion

1. I am satisfied that the ground of review contained in the second amended application filed in these proceedings cannot be sustained.  The application should be dismissed.

2. 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 fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  4 April 2007