SZHHY v Minister for Immigration

[2006] FMCA 154

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHHY v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 154

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 because of political opinion – credibility – where Applicant claimed a breach of s.424A (1) of the Migration Act 1958 (Cth) – where Tribunal had specifically written a letter to the Applicant to comply with s.424A – where Applicant claimed a breach of s.425 of the Migration Act – where Tribunal wrote to the Applicant inviting him to attend a hearing and give evidence – no reviewable error.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424A, 425, 474

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1968) 86 FCR 547

W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZHHY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 2906 of 2005

Delivered on: 2 February 2006

Delivered at: Sydney

Hearing date: 2 February 2006

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2906 of 2005

SZHHY

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 Tribunal affirmed the decision of a delegate of the minister not to grant the Applicant a protection visa.

Background

1. The Applicant is a citizen of the People's Republic of China who arrived in Australia on 19^th December 2004. Later that month he applied for a Protection (Class XA) visa which was refused on

   
   

   10^th March 2005.

2. The Applicant sought a review of that decision from the Refugee Review Tribunal and the Tribunal invited the Applicant to attend a hearing where the Applicant gave evidence. The Applicant gave oral evidence to the Tribunal on 6^th July 2005.

3. At that hearing he said how he had worked as a cook before coming to Australia and had worked in a particular restaurant from 1988 until 2004. He said that he had assisted people to prepare a dinner at the restaurant for a number of senior government officers.  The people who prepared the dinner hoped that these officials would assist them to obtain better working conditions. That did not happen and the Applicant said that he took part in various demonstrations in support of better conditions for the workers.

4. The Applicant said that as a result he was arrested, detained and was dismissed from his job and harassed by the police. His family also turned away from him. 

5. He travelled to Australia as part of a tour group, left the tour group and applied for a protection visa. He said he cannot return to his home country because he is regarded as a person who has organised anti-government activities and he has been “thoroughly deprived of his basic human rights”.

6. The Tribunal discussed certain issues with the Applicant at the hearing. Afterwards, the Tribunal wrote to the Applicant on 19^th July 2005. That letter, written to comply with s.424A of the Migration Act, drew the Applicant's attention to the fact that a person who was named at the hearing had been searched at Sydney Airport in February 2005 and was found to have some documents on him including a replacement passport for the Applicant.

7. The letter made it clear that this material cast doubts on certain parts of the Applicant's written and oral evidence and the information could caste doubt on the evidence that he had given to the Tribunal at the hearing and his overall credibility as a witness. The letter invited the Applicant to comment on the information and those comments had to be received in writing by 12^th August 2005.

8. The Applicant with the assistance of his migration adviser wrote to the Tribunal on 12^th August 2005 and in a two page letter set out his comments and explanations for the material provided to the Tribunal.  It was not until 15^th September 2005 that the Tribunal handed down its decision.

The Tribunal’s findings and reasons

1. In its findings and reasons the Tribunal accepted that the Applicant was a citizen of China and accepted the Applicant worked from 1988 until 2004 in a large restaurant and had a good reputation. The Tribunal was not satisfied for the reasons that he gave that the Applicant had been involved in any protest activity for political or other reasons.

2. The Tribunal after setting out its reasons at pages 88 and 89 of the Court Book concluded that the Tribunal was unable to accept that the Applicant was involved in any political activities on behalf of constructions workers or anyone else. The Tribunal was unable to accept his further assertion that were not substantiated that he was arrested because of such political activities and was detained and mistreated.

3. The Tribunal referred to the matters about the Applicant's former employer having been apprehended at Sydney Airport in February 2005 with a passport in the Applicant's name. The Tribunal said that it had put this to the Applicant at the hearing and of course it had covered it in the s.424A notice.

4. The Tribunal did not accept the Applicant's assertions and did not accept the documents tendered by the Applicant after the hearing to support his claims. In particular a notification of dismissal from the restaurant was considered by the Tribunal at pages 90 and 91 of the Court Book but the Tribunal was unable to give it any weight in view of the Tribunal's findings about the Applicant's credibility.

5. The Tribunal was not able to accept the Applicant's arguments about the former employer's acquisition and a replacement passport in the Applicant's name. The Tribunal was not satisfied that the Applicant satisfied the criterion set out in sub-s.36(2) of the Act for a protection visa and affirmed the decision not to grant a protection visa.

Application for judicial review

1. The Applicant sought judicial review from this Court. In an Amended Application he claimed that there was a jurisdictional error on the part of the Tribunal and a procedural error constituting an absence of natural justice. He gave a number of particulars. He said that the Tribunal had incorrectly assessed the dismissal notice from his previous employer in China and had made a wrong finding in relation to it. He said the Tribunal had failed to consider evidence that that person's visa had been cancelled and that that other person had poor credibility. He submitted that the Tribunal had made a wrong finding regarding his passport and had made incorrect findings in respect of his relationship with his former employer. 

2. The fact is that all of those assertions amount to a challenge to the factual basis of the Tribunal's findings. A Court conducting judicial review does not carry out what is known as a merits review.  It does not reconsider the facts and make its own finding on those facts in substitution for a decision of the Tribunal. Findings of fact including findings of credibility are matters for the administrative decision maker, in this case the Tribunal.  I refer to Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. As long as the tribunal's credibility findings were open to it there is no error. I refer to Kopalapillai v Minister for Immigration & Multicultural Affairs (1968) 86 FCR 547 and W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703.

3. The conclusions arrived at on the factual matters by the Tribunal were open on that evidence and the Tribunal has provided reasons as to why it arrived at those conclusions, therefore it is not open to the Court to review the merits of the Tribunal's decision as set out in a well known decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

4. The Applicant in the particulars says that the tribunal failed to comply with its obligation under s.424A(1) of the Act in that he said that the Tribunal had regarded the information relating to his ex employer and as being found with a replacement passport at Sydney Airport as one of the main reasons for affirming the decision that is under review. He said that the Tribunal failed to give him particulars of the information and failed to ensure as far as is reasonably practicable that he understood why it was relevant to the review and failed to invite him to comment on it.

5. That is wrong. It is just wrong. The Tribunal's decision makes it quite clear that the Tribunal discussed that issue with the Applicant at the time and as I indicated earlier, on 19^th July 2005 the Tribunal wrote to the Applicant at the address of his migration agent putting that material to the Applicant and invited him specifically to comment on that information. The letter under s.424A made it quite clear as to why that information was important because of the doubt that it caste on his written and oral evidence and of the doubt that it caste on his credibility as a witness. The claim of a breach of s. 424A must fail.

6. The Applicant did reply on 12^th August 2005 in a two page letter. The Applicant claimed that the Tribunal failed to comply with its obligation under s.425 of the Migration Act. I see no reason as to why the Applicant could believe that to be the case. The submission is misconceived. It is quite clear that the Tribunal wrote to the Applicant on 9^th June 2005 inviting him to attend a hearing on 6^th July 2005. That is certainly sufficient time to enable the Applicant to attend. The Applicant did attend. He gave oral evidence. There is no breach of s.425.

7. The Applicant asserts that the Tribunal incorrectly considered his credibility. As I have indicated earlier, credibility is a finding of fact and findings of fact are matters for the administrative decision maker and so long as there is evidence from which such a finding is open there is no jurisdictional error. The fact is that the Tribunal did not believe the Applicant's evidence.

8. The Applicant complained both in his Amended Application and in the submission today that the Tribunal did not consider the copy of the dismissal notice that had been submitted setting out the reasons why the Applicant said he was dismissed. The fact is that the Tribunal did consider it. The Tribunal set out at pages 90 and 91 why it considered the notice and why it was not able to place any weight on the notice. That ground must also fail.

9. The Applicant submitted that the Tribunal did not give him enough opportunities to explain. In my view that does not hold water. He was given time and he did explain. The Tribunal rejected his explanations. 

10. I have considered the material carefully in case I was able to discern any other jurisdictional error that the Applicant had not noticed. I was unable to discern any. There is no jurisdictional error. The Tribunal's decision is a privative clause decision as defined by s.474 of the Migration Act and it attracts the protection of that section. I propose to dismiss the application.

11. There is an application for costs. The Applicant has been wholly unsuccessful and in my view it is appropriate to make an order for costs in favour of the First Respondent Minister. The amount sought is $5,000.00 inclusive of counsel's fees which to my mind is within the scale envisaged by sch1 of the Federal Magistrates Court Rules. I am satisfied this was an appropriate matter for counsel to be briefed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  9 February 2006