SZHEL v Minister for Immigration
[2007] FMCA 360
•7 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHEL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 360 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether the decision of the Refugee Review Tribunal is affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), pt.8 div.2, s.474 |
| Applicant: | SZHEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2695 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 7 March 2007 |
| Date of last submission: | 7 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2007 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Ms B. Rayment, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2695 of 2005
| SZHEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8, div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 July 2005 and handed down on 18 August 2005.
The applicant arrived in Australia on 2 January 2005, having legally departed from the People’s Republic of China (“the PRC”) on a passport issued in his own name. The applicant claims to be from the PRC and of Christian faith.
On 14 February 2005, the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).
The applicant provided a statement in support of his protection visa application. Essentially, the applicant claimed that he feared persecution from the PRC government by reason of his membership of an underground religion, known as Free Christians. The applicant claimed to have become a member of the Free Christian church in early 1998 and stated that it is an official Christian group that is not supported by the PRC government.
On 9 March 2005, a delegate of the first respondent (“the Delegate”) refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Tribunal review
On 6 April 2005, the applicant lodged an application for review of the Delegate's decision. The applicant did not provide any further material in support of the review application.
On 6 June 2005, the Tribunal wrote to the applicant informing him that the Tribunal had considered material before it in relation to his application but was unable to make a decision in his favour on that information alone.
The applicant was invited to come to a hearing on 13 July 2005 and was invited to send any new documents or written arguments he wished the Tribunal to consider and to identify any witnesses that he may wish to call and give oral evidence in support of his application.
On 12 July 2005, the applicant wrote to the Tribunal requesting an adjournment of his hearing and, on 13 July 2005, the Tribunal granted that request and the hearing was postponed to 15 July 2005.
The applicant attended a hearing before the Tribunal on 15 July 2005 and gave oral evidence. The Tribunal recited the claims made by the applicant in support of his protection visa application and identified the further claims made by the applicant at the hearing. The Tribunal decision is accurately summarised by the first respondent's written submissions from paras.2 to 7 set out as follows:
“The applicant, a citizen of the People’s Republic of China (PRC), claimed to be a member of an underground religious group called Free Christian since 1998. He assisted by managing the finances of the Church. From August /September 2004, the applicant was questioned by authorities on numerous occasions and was required to go to the police station on two of those occasions.
After the applicant departed the PRC, the authorities visited his home numerous times looking for him. The applicant feared he would be persecuted if he returned to the PRC and may have been charged or sent to gaol.
The Tribunal did not find the applicant to be a credible witness. It found his evidence about the Church he belonged to and his religious beliefs and practices was vague, unconvincing and at times evasive. He was also unable to provide relevant detail about his involvement in the financial operations of the Church. Accordingly, the Tribunal was not satisfied that the applicant was involved with the Christian Church as either a participant or as a financial manager/assistant.
On that basis, the Tribunal did not accept that the applicant was questioned by authorities or that they had visited his home looking for him. The Tribunal found the applicant’s evidence in this regard to be “formless and ill-defined”.
On the basis of the applicant’s evidence that he practiced his religion only by reading books and was not involved in any church group in Australia, the Tribunal found that he would face no real chance of harm from authorities on returning to PRC, should he continue to pursue his religion in that way.
The Tribunal concluded that it could not be satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.”
The proceeding before this Court
The applicant was unrepresented before the Court his morning, although had the assistance of an interpreter.
I note that the applicant had participated in the Panel Advice Scheme and, although cancelled his conference with his adviser, was sent a copy of written advice by the panel adviser.
The applicant filed an application for judicial review of the Tribunal's decision on 22 September 2005 and an amended application on 20 December 2005.
The applicant sought to tender to the Court this morning two letters of support and a series of church brochures. All of the church brochures are dated 2006 and 2007 and therefore postdate the Tribunal hearing. For that reason those documents cannot be relevant to the deliberations of this Court as to whether or not the Tribunal's decision is affected by jurisdictional error, upon objection by the first respondent. Accordingly, they were rejected.
The two letters of support also postdate the hearing. The applicant stated that he did not know that he should have brought such material to the Tribunal. However, as this Court pointed out to the applicant, the Tribunal’s letter inviting the applicant to attend the hearing, and to which I have referred to above in these Reasons, makes clear that the applicant was requested to bring any new documents to the Tribunal that he wished it to consider. In those circumstances, letters of support that postdate the hearing cannot be relevant to this Court's deliberations of whether or not the decision of the Tribunal is affected by jurisdictional error and therefore, upon the objection of the first respondent, the tender of those two letters is rejected.
The applicant confirmed that he relied upon the amended application filed on 20 December 2005 and the grounds of this document are as follows:
“1) The Tribunal failed to follow the requirements of the Migration Act 1958, SECT 420, which requires that “The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
Particulars:
a) The Tribunal failed to assess the applicant’s claims unbiasedly and fairly. The Tribunal stated, on page 8 of the decision record, that it “does not accept that the applicant was interviewed by the local authorities on several occasions prior to his arrival in Australia and that since his arrival in Australia the local authorities have visited his home on several occasions asking about his whereabouts. However the Tribunal did not give any reason why it did not accept such claims.”
b) The Tribunal stated, also on page 8 of the decision record, that the applicant’s claims were “vague, equivocal and most unconvincing”. However, the Tribunal did not ask for specific details of what the applicant had claimed prior to and during the hearing.
2) The Tribunal did not make a genuine and realistic attempt to make the decision in a bona fide manner in that the Tribunal did not afford to the applicant the benefit of the doubt when there was not material to the contrary to what was being asserted by the applicant;
3) There was miscommunication between the Tribunal and the Interpreter and particularly the interpreter made a number of errors in interpreting this case. As such the applicant was deprived of receiving natural justice.”
Ground 1 particular A complains that the Tribunal failed to assess the applicant's claims unbiasedly and fairly. Ground 2 complains that the Tribunal did not make a genuine and realistic attempt to make the decision in a bona fide manner.
Both those allegations are serious matters that would require evidence. None is provided by the applicant. There is nothing on the face of the Tribunal's decision or the conduct of its review that would lead to the conclusion that the Tribunal approached its task with a mind not open to persuasion. Nor is there anything on the face of the decision or the conduct of the review that would in any way suggest that the Tribunal did not discharge its obligations in a bona fide manner. Accordingly, these allegations are not made out.
Ground 1 particular A also complains that the Tribunal did not give reasons why it did not accept the applicant’s claims. A fair reading of the Tribunal's decision makes it clear that the Tribunal explored with the applicant his claims. The Tribunal did not accept the applicant as a credible witness. Because the Tribunal found that there was insufficient material, beyond the bare assertions of the applicant, it was not satisfied that the applicant’s claims were made out. Those findings were open to the Tribunal on the material and evidence before it and for which it gave reasons.
Ground 1 particular B complains that the Tribunal did not ask for specific details about the applicant's claims.
However, it is clear from the Tribunal decision that the Tribunal explored with the applicant various aspects of his claims. The Tribunal noted that it put to the applicant that the applicant did not have a great deal of information to provide and noted, in particular, the lack of detail in relation the applicant’s claim of a fear of pursuit by police. The Tribunal noted the applicant's response that he had already explained to the Tribunal that he was in charge of finances in regard to the church. The Tribunal also noted that it put to the applicant that the Tribunal considered the detail about his religious practices and his involvement in the church to lack detail and that the Tribunal was not convinced about the applicant's claims.
Accordingly, such complaint is not made out.
The Tribunal noted that it asked the applicant whether there was anything further he wished to add or to comment upon and noted the applicant's response that he had nothing else to say.
The applicant also complains in Ground 1 particular B that the Tribunal found the applicant's claims to be vague, equivocal and most unconvincing. That finding was made by the Tribunal specifically in relation to the details of the particular church the applicant claimed to be involved with and about his religious beliefs and practices. A fair reading of the decision makes it clear those matters were explored with the applicant, and, as referred to above, the Tribunal's concerns about the lack of detail in the applicant's claims were clearly put to the applicant. Ground 1 particular B is, otherwise, a disagreement with the findings and conclusions of the Tribunal. It is not open to this Court to conduct a merits review. The particular finding, about which the applicant complains, was open to the Tribunal on the evidence and material before it and for which it provided reasons.
Accordingly, particular B is not made out.
Accordingly, grounds 1 and 2 are rejected.
Ground 3 appears to be a complaint about the interpretation at the hearing. However, it is unsupported by any particulars. There is nothing on the face of the decision to lead to a conclusion that there was any difficulty with the interpretation at the hearing.
The applicant complained to this Court, in oral submissions, about interpreting problems at the hearing. However, no evidence to support such an allegation is furnished by the applicant, despite having been directed to provide such evidence and material at a directions hearing on 25 October 2005. Such allegation would, at least, require consideration of a transcript, and none has been provided by the applicant in support of that allegation. There has been ample time for the applicant to file and serve any evidence upon which he would seek to rely in support of his application before this Court.
Accordingly, ground 3 is not made out.
The Tribunal identified the claims made by the applicant and the evidence and material before it. The findings and conclusions made by the Tribunal were open to it on the evidence and material before it. The Tribunal conducted its review in accordance with the statutory regime, including the making of its decision. The decision of the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed.
The first respondent seeks costs fixed in an amount of 2800. I note that the relevant costs schedule is that attached to the old Federal Magistrates Court Rules 2001. I note that such sum is significantly less than the maximum available under that schedule. Accordingly, I am satisfied that the costs sought are reasonable.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 30 March 2007
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