SZGZY v Minister for Immigration
[2005] FMCA 1931
•21 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGZY v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1931 |
| MIGRATION - visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of Indonesia but formerly a citizen of China – where Applicant claims Indonesian citizenship obtained illegally – whether Applicant has a well-founded fear of being returned to China – whether Tribunal correctly assessed Applicant’s review on the basis of whether the Applicant had a well-founded fear of persecution in Indonesia for a Convention reason – no reviewable error. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424A, 474
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
| Applicant: | SZGZY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2309 of 2005 |
| Delivered on: | 21 December 2005 |
| Delivered at: | Sydney |
| Hearing date: | 19 December 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Jowett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Leave to join Refugee Review Tribunal as a Respondent.
That the Refugee Review Tribunal is joined as Second Respondent to the application.
That the application is dismissed.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of $4,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2309 of 2005
| SZGZY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 29th June 2005 after two hearings before the same Tribunal Member. The first hearing took place on
16th December 2004 and the second took place on 3rd June 2005. The Refugee Review Tribunal handed down its decision on 19th July 2005.
The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of Indonesia. She arrived in Australia on
10 June 2004 and on 9 July 2004 she lodged an application for a protection (class XA) visa. That application was refused on
2 September 2004, so the Applicant sought a review of that decision from the Refugee Review Tribunal.
The Applicant attended a hearing of the Tribunal on 1 October 2004, where she gave oral evidence. It is the Applicant’s case that she was a Christian from China who was persecuted by the Chinese authorities. She was helped by her Church colleagues to obtain a visa for Indonesia. She left China and travelled to Jakarta in Indonesia on
19th April 2004.
Not long after she arrived in Jakarta, the Applicant was introduced to an Indonesian man, whom she married two days later. She soon found out that he was a Muslim who was already married with a child. The Applicant was very unhappy in the relationship and realised that she had made a serious mistake.
The Applicant said that she could not stay in Indonesia because the native Indonesians were opposed to the ethnic Chinese and robbed them attacked them. She felt unsafe because there were many riots.
The Applicant said that she obtained an Indonesian passport and a visa for Australia. Her Indonesian husband accompanied her to Australia but told her that he intended to return to Indonesia, where he proposed to divorce her as soon as possible.
The Applicant said that her Chinese passport had not been cancelled, and she expressed a fear that if she went back to Indonesia the authorities might send her back to China. The Tribunal decided to make inquiries about the relevant nationality laws of China and Indonesia and then hold another hearing.
On 11th March 2005 the Tribunal wrote a letter to the Applicant to comply with s.424A of the Migration Act 1958. The letter contained a translation of the Applicant’s Indonesian marriage certificate, which stated that she and her husband were married on 22 April 2004 in Jakarta. The marriage was solemnised by a Buddhist priest.
The letter also included a copy of page 4 of the Applicant’s Indonesian passport that stated that:
a)The Applicant was the legal wife of an Indonesian national.
b)The Applicant had obtained Indonesian citizenship by means of a District Court decision on 29 April 2004.
c)
The Applicant had renounced her citizenship of the People’s Republic of China at the Chinese Embassy in Jakarta on
27 April 2004 and had returned her passport to the Embassy on 30 April 2004.
The letter stated that the evidence indicated that the Applicant was an Indonesian citizen and her claims would be determined on the basis that Indonesia was her country of nationality. A copy of the letter appears at pages 102 and 103 of the Court Book. The Applicant was invited to comment on the information in the letter, which included this paragraph:
Why this information is relevant to the review
You gave evidence that you first met your husband on 21 April 2004 the day after you arrived in Indonesia, that he felt sorry for you and asked you to marry him. You married on the 22 April 2004. You also indicated that your husband came from a strict Muslim family and had another wife. The information in the marriage certificate could indicate that your marriage to an Indonesian citizen was contrived as it took place one day after you claim you first met your husband. Further the ceremony was solemnized by a Buddhist priest despite your evidence that your husband came from a family of strict Muslims. The inconsistency between your evidence and the information in the marriage certificate may indicate that your marriage was contrived and that you have not given truthful evidence about the circumstances of your marriage and your husband and his family. If the Tribunal were to find that you had not given truthful evidence it may also find that you are not a credible witness and that your claims have been fabricated to obtain a protection visa. The endorsements on your passport state that you are an Indonesian citizen and that you renounced your citizenship of the PRC on 27 April 2004. This means that your claims of persecution are to be determined on the basis that you are a citizen of Indonesia.
The Applicant replied in writing on 28th April, after having been granted an extension of time. A copy of her letter in reply appears at pages 106 to 108 of the Court Book. In that letter the Applicant claims that she cannot return to China for safety and human rights reasons; her life is threatened. She also claims that she cannot return to Indonesia because she is very disappointed with her ex-husband who lied to her and divorced her. She does not want to go back to a country where sad and uncomfortable things happened to her.
The Applicant also claimed that it was possible that her Indonesian citizenship could be cancelled if her ex-husband held another valid passport according to Indonesian law. As she says that she still has a Chinese passport, she would be detained or sent back to China.
The Tribunal held its second hearing on 3rd June 2005. The Applicant attended and gave further evidence. The Tribunal member put it to the Applicant that she had paid someone to leave China and travel to Indonesia and marry an Australian citizen. The Tribunal put to the Applicant that the whole arrangement was contrived so that she could obtain entry into Australia. The Applicant denied those propositions and asserted her truthfulness.
The pastor of the Applicant’s local church gave evidence in her favour at the hearing. The pastor was an ethnic Chinese person who was an Indonesian citizen before he came to Australia. He spoke highly of the Applicant’s church activities.
The Tribunal’s decision
The Tribunal referred to a considerable amount of independent country information about Indonesia and the situation of Christians and ethnic Chinese Indonesians in that country.
In the Tribunal’s “Findings and Reasons”, the Tribunal found that the Applicant was born in China and possessed a Chinese passport. The Tribunal accepted that the Applicant had Chinese nationality before she arrived in Indonesia in April 2004.
The Tribunal also found that neither China nor Indonesia allows dual citizenship and that the obtaining by the Applicant of Indonesian citizenship resulted in the loss of her nationality as a matter of law.
The Tribunal did not accept that the Applicant was at risk of being sent to the People’s Republic of China if she were to return to Indonesia. The country information indicated that there was no risk of her being sent to a third country such as China.
The Tribunal found that there was not a real chance that the Applicant would be persecuted by reason of her religion in the reasonably foreseeable future if she were to return to Indonesia. The Tribunal was not satisfied that any discrimination that the Applicant may have suffered in the past as a person of Chinese ethnicity, or may suffer in the foreseeable future, constituted serious harm.
The Tribunal found that the Applicant did not face a real chance of persecution for reasons of her ethnicity, religion or any other Convention reason if she were to return to Indonesia in the reasonably foreseeable future. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution within the meaning of the Convention and affirmed the decision of the delegate not to grant the Applicant a protection class visa.
The Application for Review
The Applicant filed an application under section 39B of the Judiciary Act 1903 on 22 August 2005. In her application she makes the following claims:
·I was born in China on 7/11/1976. I am Chinese citizen for most of my life.
·I am also a Christian and I had suffered a lot because of my belief.
·I could not live in china any more and I will be persecuted if I go back to China continue (sic) with our religion.
The Applicant relies on the following grounds, which I have summarised:
a)She does not think that either the delegate or the Refugee Review Tribunal made a fair decision on her application.
b)She cannot go back to Indonesia because her second marriage did not last and she “can not be allowed to live in Indonesia”.
c)She claims she is still a citizen of China and she should be assessed on that basis.
d)She cannot return to China because of her religion. It has been banned in China.
The Respondent’s submissions
Counsel for the Respondent Minister, Ms Jowett, has prepared a written outline of submissions. Her submissions are:
a)There is no jurisdictional error that would take the Tribunal’s decision outside the definition of a privative clause and deprive it of the protection of section 474 of the Migration Act.
b)The tribunal considered the Applicant’s claims based on her lawful country of nationality, Indonesia.
c)There was no evidence that the Applicant had a well-founded fear of persecution for a Convention reason at the time of her leaving Indonesia (Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293; Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1).
d)The Tribunal found that there was no real chance that persecution would occur in Indonesia in the reasonably foreseeable future (Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379).
e)The Tribunal has complied with the requirements of s.424A and has complied with the requirements of the natural justice hearing rule under s.422B of the Migration Act.
f)The Tribunal’s findings were open to it on the material before it. There is no jurisdictional error.
g)As a result, the application should be dismissed with costs.
The Applicant’s submissions
The Applicant did not file any Written Outline of Submissions, but gave oral submissions at some length. She took issue with the finding by the Tribunal that she was a citizen of Indonesia and not a citizen of China.
The Applicant asserted that she still holds citizenship of the People’s Republic of China. She told the Court that her Indonesian marriage was “not accepted any more” although she did not make clear by whom, except, presumably, her former husband and herself.
She stated that her Chinese citizenship was not revoked because she obtained Indonesian citizenship by an illegal method. She did not hand in her Chinese passport before taking on Indonesian citizenship. She said that she and people on her behalf paid bribes to obtain an Indonesian passport and the passport was obtained illegally.
The Applicant said that she cannot return to Indonesia because she has no friends or relatives there. She claimed to be fearful of returning to Indonesia, and she was equally fearful of returning to China.
The Applicant referred at length to her strong Christian beliefs, which she claimed would lead to her being persecuted in China.
Conclusions
As counsel for the First Respondent submitted, the Applicant in effect admitted that the marriage into which she entered in Indonesia was an arranged marriage for the purpose of bolstering the Applicant’s claim to be a refugee.
I have read the Tribunal’s decision thoroughly, mindful of the fact that the Applicant is not legally represented. I am unable to discern any jurisdictional error, whether asserted by the Applicant or not.
The Tribunal decision made a careful analysis of the Applicant’s citizenship claims, including taking the unusual step of inviting the Applicant to attend a second hearing to allow the Applicant the opportunity to argue her claims about her citizenship and the validity of her Indonesian marriage. It can hardly be said that the Tribunal denied the applicant natural justice or procedural fairness, quite the reverse, in fact.
The Tribunal made a number of inquiries after the first hearing and wrote to the Applicant, setting out details of the material that might be the reason, or part of the reason, for affirming the delegate’s decision. The letter made it clear to the Applicant why the information was important, and it complies with the requirements of s.424A of the Migration Act. The Tribunal even allowed the Applicant’s request for an extension of time to reply. It was after the Applicant replied to the letter that the Tribunal invited the Applicant to the second hearing so that she could answer the Tribunal’s concerns about her credibility.
In my view, the Tribunal member has conducted the review with a scrupulous attention to the requirements of natural justice and procedural fairness.
Despite the Applicant’s assertions, the Tribunal approached the question of the Applicant’s citizenship in a careful way and the finding that the Applicant is a citizen of Indonesia was clearly open to the Tribunal on the evidence.
It was open to the Tribunal to make the finding that the Applicant had acquired Indonesian citizenship and, therefore, to assess the Applicant’s claims of a fear of persecution on that basis. The Tribunal found that there was no real chance that the Applicant would be in danger of being returned to China, and the Applicant would not face a real chance of persecution for a Convention reason if she were to return to Indonesia in the reasonably foreseeable future.
The Tribunal formed an adverse view of the Applicant’s credibility, and in my view it was open to the Tribunal to do so. Credibility findings are entirely a matter for the Tribunal (Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]) and there is no jurisdictional error if there are grounds for making such a finding (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69]).
The Applicant’s subsequent statements to the Court about the dubious circumstances of her marriage to the Indonesian man and the way in which she obtained Indonesian citizenship only supports the credibility findings made by the Tribunal.
There is no jurisdictional error. The decision is a privative clause decision as defined in s.474(2) and is therefore not subject to prohibition, mandamus, injunction, declaration or certiorari in this Court, or any other court (s. 474(1)(c)).
The Applicant clearly has no wish to return to Indonesia, where she has no friends or family. She apparently does not speak Bahasa Indonesia. Her predicament, however, is entirely of her own making. The application will be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 22 December 2005
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