SZHGS v Minister for Immigration

Case •

[2006] FMCA 143

•

20 January 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHGS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 143
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 China claiming fear of persecution for reason of religion – credibility – identity issues – where applicant had claimed to be a citizen of Malaysia – natural justice.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 422B, 424A, 474
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Minister for Immigration & Multicultural & Indigenous Affairs v Durairajasingham (2000) 168 ALR 407
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1138
SZFCN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 858
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158
WAGP/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266
Applicant: SZHGS
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2842 of 2005
Judgment of: Scarlett FM
Hearing date: 20 January 2006
Date of Last Submission: 20 January 2006
Delivered at: Sydney
Delivered on: 20 January 2006

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondent: Ms Mason
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 $4,000.00 and I allow (6) six months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2842 of 2005

SZHGS

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 affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant.  The Tribunal also found that it did not have jurisdiction to consider review applications made by two other applicants.  Those applicants are not parties to these proceedings.

  2. The applicant is a citizen of the People's Republic of China.  He arrived in Australia on 14th February 1995 on what he claims is a false Malaysian passport.  He applied for a protection (Class AZ) visa on


    2nd March 1995 but it was refused on 28th August 1995.  For reasons that are not clear, on 8th April 2005 the applicant was renotified of the delegate's decision.  On 2nd May 2005 he applied to the Refugee Review Tribunal for a review of that decision.  The Tribunal wrote to him on 4th July 2005 inviting him to attend a hearing and give oral evidence and give arguments in support of his case.  On 17th August the applicant attended a hearing of the Tribunal and gave oral evidence.  The Tribunal made its decision on 25th August and handed that decision down on 13th September 2005.  The Tribunal affirmed the decision of the Minister's delegate to refuse to grant the visa.

  3. The Tribunal in its decision made a number of adverse findings relating to the applicant's credibility.  In particular, the Tribunal found that the applicant had not been truthful based upon his own admissions at page 96 of the Court Book.  The Tribunal found there to be an issue about the applicant's identity, including some confusion as to whether the applicant was in fact a citizen of Malaysia or of the People's Republic of China.  On the basis of the applicant's own claims, it was found that he had represented himself to be three separate people, which led to a finding by the Tribunal that the applicant was not a credible witness.  What the Tribunal did do, at page 97 of the Court Book, was make a decision to give the applicant the benefit of the doubt and accept that he was a particular person that he claimed to be and that he was a national of the People's Republic of China.

  4. The Tribunal proceeded to assess his claim in respect of the circumstances relating to the People's Republic of China, even though, as I said, the Tribunal had significant doubts about the applicant's credibility.  Indeed the Tribunal said that if he had a well-founded fear of serious harm in China, he would have sought international protection in Malaysia but did not do so.  The Tribunal did find that the applicant had lied about his passport.  The Tribunal was not able to be satisfied that the applicant had obtained a Malaysian passport for a Convention-related reason because he was already outside of China.  The Tribunal noted that the applicant had made a number of new claims at the hearing and in a written statement which he provided to the Tribunal at the conclusion of the hearing noted that he had not provided evidence to support those claims and also found, at page 99 of the Court Book, that in the remaining five years when the applicant was in China before he left, he did not claim to have been detained, arrested or harassed by the authorities.  The Tribunal did take into account a statement by the applicant's wife but eventually did not give any weight to it.

  5. The Tribunal did not accept certain matters which were quite important to the applicant's claim, including his claims that he had been interrogated, arrested, detained or abused by the PSB, the police or any other authority, or that as a cleaner and security guard he had a political profile of any sort in China, or that he had lost his job as a cleaner and security guard at the school where he worked for a Convention-related reason, or that he had been involved in the pro-democracy movement in 1989 and accepted that he was not a teacher or a person with tertiary qualifications.

  6. The Tribunal questioned the applicant about his knowledge of religion and from his answers was not satisfied that he was a Christian evangelist in China or even a Christian.  The Tribunal was not satisfied that he had been involved in Christian activities in Australia until after he was released from detention and made a finding pursuant to


    s.91R(3)(b) about those activities. The Tribunal said in the first paragraph of page 104:

    Section 91R(3)(b) of the Migration Act qualifies the definition of a refugee and requires the Tribunal to disregard any conduct in Australia if it was undertaken to strengthen his/her claim to be a refugee. Accordingly, the Tribunal has therefore disregarded this evidence and his claimed participation in the activities of the Sydwest Asian Christian Church since April 2005.

  7. In the long run, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to the People's Republic of China.

  8. The applicant has sought judicial review of the Tribunal's decision under the provisions of s.39B of the Judiciary Act 1903 (Cth).


    He filed his application on 5th October 2005 seeking a writ of certiorari, which I take to mean would quash the RRT's decision.  He gives two grounds.  First, that the Tribunal constructively failed to exercise its jurisdiction to afford him natural justice in circumstances where the Tribunal applied the incorrect test of persecution for Convention - meaning, I presume, a Convention-related reason.  Second, the Tribunal misinterpreted and misapplied the law to the facts as found by it, in presumably assessing a criterion for a protection visa.

  9. I asked the applicant to elaborate on those claims.  In respect of the first ground, he said that the Tribunal had not given him sufficient time to find a lawyer to assist him.  He said that he had escaped from a prison in China and told the Tribunal member about that and that his name had been kept on the police file.  The member thought that he was telling a lie, but he said that he was telling the truth.  In respect of the second ground, that the Tribunal misinterpreted and misapplied the law to the facts, he reiterated that whilst the Tribunal doubted his credibility, he was in fact telling the truth and said that he had been out of China for over 10 years.  His whole family is here in Australia and the best thing to do would be to let them all remain in this country. 


    He pointed out in his submissions in reply that he had been in immigration detention in Villawood and did not have time or money to obtain a lawyer.  He was released from Villawood on 8th April 2005.

  10. I have had the opportunity of reading the written submissions prepared by counsel for the respondent. She submits with some force that the grounds of review claimed by the applicant are in essence one and the same, being a ground which alleges constructive failure, being a failure to properly apply the Convention test. The grounds are neither particularised nor made out. She submits that this is a privative clause decision for the purpose of s.474 and can only be set aside where there has been a failure to discharge imperative duties or failure to observe inviolable limitations or restraints (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]).

  11. The respondent refers to the allegation of a denial of natural justice and submits that this ground is linked to the alleged constructive failure that cannot be made out. The respondent submits the Tribunal did comply with the procedures and processes prescribed by the Act, and by the application of s.422B of the Migration Act the applicant was accorded procedural fairness. There is just no evidence of any procedural unfairness or failure to provide natural justice. The applicant attended the hearing, gave evidence, and was asked questions by the Tribunal about his claims and the Tribunal, in affirming the delegate's decision, provided a lengthy statement as to the Tribunal's reasons.

  12. Although the applicant has not raised it, counsel for the respondent Minister has raised the issue of whether the Tribunal erred by its reference to the applicant's protection visa application in contravention of s.424 of the Act as discussed in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. The respondent submits that there is no jurisdictional error by way of a failure to comply with sub-s.424A(1).

  13. The Tribunal found that the applicant's evidence was vague, unsubstantiated and contradictory and that he was not a credible witness.  In making its credibility findings, the Tribunal had regard to the implausibility of the applicant's claims and the lack of corroborative evidence by his many new claims.  It is of course a matter for the decision-maker, for the Tribunal, to make findings about credibility or otherwise (see Minister for Immigration & Multicultural & Indigenous Affairs v Durairajasingham (2000) 168 ALR 407). There were ample reasons; it is submitted, for the credibility findings. There were a number of inconsistencies that may have been there in respect to the protection visa but it is submitted that they were not integral to the decision. I am quoted a significant number of references, including SZFCN & Anor v Minister for Immigration [2005] FMCA 858; VBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [31]-[35]; VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [28]-[41]; VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [50]-[54] and others.

  14. The reliance by the Tribunal to the extent that it did upon inconsistencies, these were primarily internal inconsistencies and implausibilities within the applicant's claims and evidence at the hearing.  Those matters are not information for the purposes of


    s. 424A. I refer to WAGP/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266, and the more recent application by Lindgren J in SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1138 at [24]. In any event, the Tribunal did not rely upon the inconsistencies themselves but rather considered the best evidence arising from those inconsistencies as to credibility to be the applicant's evidence that he had in fact lied. It was the admission that formed part of the decision rather than the inconsistency itself. The respondent submits, correctly in my view, that the Tribunal did comply with s.424A of the Act and did not contravene any of the principles contained in SAAP v Minister for Immigration (supra).

  15. I am mindful of the fact that the applicant is not legally represented.  Like the respondent's legal advisers, I too have perused the decision to see whether there is any evidence of any other jurisdictional error which may not have been apparent to the applicant.  I cannot discern any.  I am satisfied that there is no jurisdictional error.  I am satisfied that the Tribunal decision is a privative clause decision as defined in


    s.474 of the Migration Act and it attracts the protection of that section. It must follow therefore that the application will be dismissed and I make that order now.

  16. It is common and in fact normal in these proceedings for an order to be made that the unsuccessful party will have to face an order for the costs of the successful party.  A lack of funds is not usually a reason for not making an order for costs but it is a matter to be taken into account when the Court is deciding whether to allow time to pay.  In my view this is an appropriate case for an order for costs and I note that the sum of $4,000.00 is claimed, which includes counsel's fees.  That is a figure that is within the range envisaged by the scale of the Federal Magistrates Court Rules 2001.  At the same time, however, the applicant's family commitments and his impecuniosity otherwise represent to me a reason why serious consideration should be given to allowing him time to pay.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  27 January 2006

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