SZHEO v Minister for Immigration

Case •

[2006] FMCA 89

•

17 January 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHEO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 89
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 People’s Republic of China claiming fear of persecution for reason of religion.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.425A, 474

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZDQO & Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026

Applicant: SZHEO
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 2699 of 2005
Delivered on: 17 January 2006
Delivered at: Sydney
Hearing date: 17 January 2006
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Quinn
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,800.00.

  3. I allow three (3) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2699 of 2005

SZHEO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 12th August and handed down on 1st September 2005. 

  2. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs not to grant a protection (class XA) visa to the Applicant.  

Background

  1. The Applicant is a citizen of the People’s Republic of China who arrived in Australia on 8th February 2005. On the eighteenth of that month he applied for a protection visa claiming that he had a fear of persecution if he were to return to China. He said that he had suffered persecution by the Chinese government and it was very hard for him to continue to live in China.

  2. He claims that he became a Christian when he was very young due to his parents and his life had been made miserable because of his religion.  He claimed he was discriminated against both at school and in the field of employment.

  3. A delegate of the Minister refused his application for a visa on 24th March and on 20th April 2005 he applied to the Refugee Review Tribunal for a review of that decision. 

  4. The Applicant attended a hearing of the Tribunal on 12th August 2005.  He told the Tribunal of his claims of fear of persecution because of his religion and because his mother was Japanese. He said that he became a Christian when he was young and was mistreated at school. He did not get a job because of his religion and because his mother was Japanese. 

  5. He said that he was a leading member of the Christian Shouter Church and as a result the authorities searched his home and told him his religious activities were illegal. On two occasions he said that he was detained and tortured. He said that his house had been confiscated because he had a held a church meeting there but his Christian group helped him to pay a bribe to obtain a passport and he travelled to Australia.  In this country he has joined in activities at the local church.

The tribunal’s findings and reasons

  1. In its findings and reasons the Tribunal accepted that the Applicant was a national of the Peoples Republic of China. Unfortunately, the Tribunal went on to say at page 78 of the court book that many of his claims were very vague in general and lacking many key details such as dates. 

  2. The Tribunal noted that while the Applicant provided no evidence about his attending church in China Town in Sydney every Sunday and also on Mondays and Wednesdays at a church person's home, the Tribunal was willing to accept those claims by the Applicant. The Tribunal was not satisfied, however, that the Applicant had not been a Christian in China and the Tribunal was not satisfied that the Applicant was a reliable witness. As a result, the Tribunal formed the view that the Applicant had been attending religious activities in Sydney in order to enhance his claims for a protection visa.

  3. The Tribunal did not accept that the Applicant was of any interest to the authorities otherwise he would not have been able to obtain a passport in his own name, even by paying a bribe. As a result the Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicant a protection visa.

Application and amended application

  1. The Applicant commenced proceedings in this Court under s.39B of the Judiciary Act. In an Amended Application filed on 22nd November 2005 the Applicant seeks orders setting aside the Tribunal decision and restraining the Department of Immigration & Multicultural & Indigenous Affairs from removing him from Australia. 

  2. The Applicant set out five grounds in his Amended Application.  Whilst the Applicant did not file a Written Outline of Submissions, I asked the Applicant a number of questions about matters in his application and gave him the opportunity to address the court about why he believed that the Refugee Tribunal decision was wrong. The Applicant is not legally represented. 

  3. The first ground in his application is that the Refugee Review Tribunal did not provide substantial evidence before the decision was taken, rather the Applicant claims that the Tribunal just relied on the word of the Immigration Department. This ground was explained by the Applicant to say that he was unable to get hold of evidence relating to his activities and the persecution in China because he could not secure this evidence, namely photographs, videos and other documents through normal channels. 

  4. That in fact formed the basis of his third ground, which was:

    That the RRT did not consider the difficulties on me to collect evidence from China.

  1. And his fourth ground:

    I will provide some new evidence to the court.

  2. I was obliged to explain to the Applicant that the court could not consider any fresh evidence that had not been presented to the Tribunal. 

  3. The second ground in the Applicant's application was this:

    I doubt the DIMIA used the current law in my application.

  4. In his oral submission the Applicant explained that the Department of Immigration & Multicultural & Indigenous Affairs had made a legal error, but in answer to a question from the bench he agreed that he did not tell this ground to the Refugee Review Tribunal.  In explanation he said:

    I was just blank.

  5. Dealing further with the Applicant's third ground which not only referred to his difficulty in obtaining evidence from China but also alleged that the Tribunal totally ignored the potential of persecution if he were to return to China, the Applicant said that he did attempt to tell the Refugee Review Tribunal his fear of persecution if he were to return to China, but certainly did not go into any details such as a fear of arrest, or a fear of beating or torture.

  6. The fifth ground is an allegation that the Tribunal fell into jurisdictional error. He explained that ground by saying that the Tribunal did not take into account the sort of persecution he would face if he returned to China. When asked if he told the Tribunal about that, the Applicant admitted that he did not say anything. When it was put to the Applicant that the Tribunal just did not believe him, he explained that was because he was unable to produce evidence and that evidence is still to come.

  7. The Applicant did not have anything further to add other than his desire for some form of a postponement in order to obtain further evidence.

  8. The Respondent Ms Quinn solicitor put to the court that it was true that the Tribunal did not believe the Applicant's account, but that was not just because of a lack of evidence. It was also about his lack of knowledge about the Christian religion as the Tribunal had asked him about that. 

  9. I note that the Applicant is not legally represented and in my view it is appropriate that the court should look at the Tribunal decision in order to see whether any jurisdictional error not mentioned by the Applicant should appear. It certainly appears to me that the Applicant's case failed because the Tribunal was not satisfied with the credibility of his evidence. In fact as a consequence of his oral evidence the Tribunal did not accept that he was a Christian, which was as the Respondent points out, central to all of the Applicant's claims.

  10. The question of the credibility of a witness is properly the function of the decision maker and it is generally not susceptible to judicial review by the Court. (See Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407).

  11. The Applicant had originally been invited to attend the hearing to take place on 27th July 2005 but he was unable to attend on that date due to illness and he provided a medical certificate. The Tribunal then wrote to the Applicant on 8th August inviting him to attend the hearing on 12th August 2005.  The Applicant did attend on that date. 

  12. It is submitted, and I believe accurately, that there is authority to the effect that in circumstance such as this, where a hearing is rescheduled at the behest of the applicant that the provisions of s.425A of Migration Act do not apply. I refer to the decision of SZDQO & Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026 which is a decision on appeal from the Federal Magistrates Court and indeed it is a decision on appeal from one of my own decisions.

  13. In that case, Conti J considered whether the requirements of s.425A do apply to a letter sent to an applicant rescheduling a hearing particularly the period of notice of a hearing date required to be given. The Respondent points out that the period in Regulation 4.35D(b) requires a notice of a hearing to be 14 days after the notice of hearing is received.

  14. In SZDQO at 29 Conti J found and I quote:

    In my opinion in circumstances where the Tribunal decides to reschedule a contemplated hearing at the behest explicitly or implicitly of an applicant s.425A does not apply in relation to the notice of the rescheduled hearing at least insofar as concerns the period of the reviewed notice.  The sanction on the Tribunal in those circumstances would be the operation of the general law as a natural justice subject to the operation of the recently enacted s.422B of the Act.

  15. The rescheduling of the hearing does not therefore constitute a jurisdictional error. The hearing was rescheduled at the request of the Applicant and as such there is no obligation on the Tribunal to comply with the requirements of s.425A. Sufficient notice was given for natural justice purposes because the Applicant did in fact attend the hearing and there is no suggestion that the Applicant complained about the period of notice that he was given when he appeared at the hearing.

  16. In my view, no jurisdictional error appears. I am satisfied that the decision of the Refugee Review Tribunal is a privative clause decision to which the provisions of s.474 of the Migration Act apply and the decision is therefore protected by the provisions of that section.

  17. Accordingly, I dismiss the application.

  18. There is an application for costs by the First Respondent Minister. This is a matter where the Applicant has been unsuccessful and in the ordinary course of events the court would make a costs order in favour of the Minister. There is no reason why I should not do so and the amount sought, namely $2,800.00 is well within the scale envisaged by the Federal Magistrates Court Rules. In fact it is a claim for costs that is on the modest side.

  19. The Applicant has mentioned that he is still waiting on evidence from China which is not a relevant consideration and that he has been unemployed for about a month now.  That is a matter that I should take into account, not in deciding whether or not costs should be awarded, but whether I should allow time to pay. I am satisfied that there are grounds for making an order that there should be some time to pay those costs and I propose to allow three months to pay in the circumstances.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  27 January 2006

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