SZHHI v Minister for Immigration - [2007] FMCA 662

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHHI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 662

MIGRATION – Refugee Review Tribunal – practice and procedure – credibility of applicant – whether arguable case for relief claimed.

Federal Magistrate Court Rules 2001, rr.44.12; 44.12(1)(a)
Migration Act (Cth), ss.424A; 424A(1); 424A(3); 424A(3)(a)

Applicant:

SZHHI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG85 of 2007

Judgment of:

Emmett FM

Hearing date:

30 April 2007

Date of last submission:

30 April 2007

Delivered at:

Sydney

Delivered on:

30 April 2007

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent:

Ms L. Gazi,

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG85 of 2007

SZHHI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By way of response, filed in this Court on 15 February 2007 by the first respondent to an application filed by the applicant on 10 January 2007 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 November 2006 and handed down on 12 December 2006, the first respondent sought an order that the application be dismissed on the basis that the application does not raise an arguable case for the relief claimed pursuant to r.44.12 of the Federal Magistrate Court Rules 2001.
The application filed on 10 January 2007 relied on the following grounds:
“1. The Tribunal’s satisfaction that I am not a refugee was not based on a rational and logical foundation.
2. The Tribunal had bias against me and did not believe the claims for my application based on assumption, not evidence and materials.
3. The Tribunal failed to consider my application according to S91R of the Migration Act because of the Tribunal’s bias against me.
4. The Tribunal failed to provide an adequate particulars of the independent information.
5. The Tribunal did not provide me an adequate opportunity to respond the substance of the information.
6. A copy of the decision letter is attached.”
The applicant attended a directions hearing before this Court on 15 February 2007 at which time the applicant was given leave to file and serve an amended application and any evidence upon which he intended to rely by 29 March 2007. On 29 March 2007 the applicant filed an amended application relying on the following grounds:
“1. The Tribunal refused my application for a protection visa based on assumption of the officer, the decision to refuse my application was induced by actual bias of the officer, not evidence.
2. The Tribunal failed to provide an adequate particulars of the independent information. The Tribunal failed to consider my application in accordance with S91R of the Migration Act 1958.
3. The Tribunal did not provide me an adequate opportunity to respond the substance of the information. I was not given an opportunity to explain more details of my application.”
It is apparent from a comparison of the initiating application and the amended application that ground one of the amended application is a restatement of ground two of the initiating application, ground two of the amended application is a restatement of grounds three and four of the initiating application and ground three of the amended application is a restatement of ground five in the initiating application.
Ground one of the amended application alleges actual bias on the part of the Tribunal officer. The ground contains no particulars and is unsupported by any evidence. Such an allegation is a serious one and requires particularisation and evidence.
The applicant was unrepresented before this Court this morning although had the assistance of an interpreter. The applicant made no submission in support of any of the grounds and did no more than ask the Court to set down his matter for a thorough consideration of his application. The applicant has not identified any part of the Tribunal's decision that he alleges reflects bias.
The Tribunal decision was made following a hearing attended by the applicant, and at which the applicant gave evidence. The Tribunal summarised the applicant's claims as follows:
The applicant, claims to this Tribunal (T2) that he was born and resided in Fujian Province. He claims that he has been a Christian since he was a child. His parents were Christians. He has never been a leader, he merely attended Church. He attended a “house church” based in his parent's home until it was shut down in 1997. He started to practise Falun Gong in 1997. He travelled to Australia in April 2004. On his return to China he was detained in May 2004, harmed severely and was hospitalised for his Falun Gong activity. After being released he fled China fearing persecution. He does not attend church in Australia but he does practise Falun Gong in Australia.
The Tribunal did not accept the applicant as a witness of truth and rejected his claims. The Tribunal gave reasons for its finding of adverse credibility in respect of the applicant. In short, those reasons include the lack of knowledge by the applicant of Christianity, the arrival by the applicant in Australia on 12 April 2004 and his return to China on 17 April 2004 without making a protection visa application, his lack of knowledge about the fundamental aspects of Falun Gong and the unsatisfactory nature of responses by the applicant to a letter sent to the applicant pursuant to s.424A of the Migration Act (Cth) in relation to information that was not otherwise excluded by s.424A(3) of the Act.
The Tribunal found that the applicant had created his claims in order to obtain a visa and rejected his claim of every having practised Christianity in China of Falun Gong in China or having been harassed, questioned or arrested or detailed by authorities about Falun Gong activities. The Tribunal rejected the applicant's claim of having been detained in May 2004 or that he was beaten or harmed or hospitalised in May 2004. The Tribunal noted that the applicant's claim that he suffered from memory loss or bad memory and was therefore unable to recall information or details.
The Tribunal noted that the applicant had provided no medical evidence in support of his claims of any loss of memory or medical condition to support his contention that he was unable to recall any information or detail. The Tribunal recounted in some detail the history of the applicant's hearings before an earlier constituted Tribunal and before the second constituted Tribunal. The Tribunal also had regard to independent information that it identified with some particularity.
There would not appear to be anything on the face of the decision that would suggest that the applicant has an arguable case on the basis of bias of the Tribunal officer.
Ground two of the amended application again is unsupported by any particulars. To the extent that ground two complains that the Tribunal did not provide particulars of independent information to which it had regard, I note that such information is excluded from the requirements of s.424A(1) of the Act by s.424A(3)(a) of the Act. There does not appear to be any arguable case raised by ground two in the circumstances.
Ground three of the amended application makes a general complaint about a lack of opportunity to respond to information that formed part of the reason for the Tribunal affirming the decision under review. The information that the Tribunal considered may be part of the reason for it affirming the decision under review was put to the applicant in a letter dated 25 September 2006 and would appear to be in accordance with s.424A(1) of the Act. The applicant responded to that letter on 9 October 2006 (though the faxed response appears to have been mistakenly dated 9 September 2006) and attended a hearing before the Tribunal on 25 September 2006.
It would appear from the Tribunal's decision that it explored with the applicant concerns he had had about various aspects of his evidence before the Tribunal and I am not satisfied that the application raises an arguable case for the relief claimed by ground three of the amended application. In the circumstances, the applicant has not satisfied this Court that he has raised an arguable case for the relief claimed and accordingly, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001, the proceeding, commenced by way of application filed on 10 January 2007, is dismissed.

RECORDED : NOT TRANSCRIBED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 7 May 2007