SZHQJ v Minister for Immigration

[2007] FMCA 440

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHQJ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 440

MIGRATION – Visa – Refugee Review Tribunal – Protection (Class XA) visa -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 the People's Republic of China claiming fear of persecution because of political opinion – no jurisdictional error.

PRACTICE & PROCEDURE – Comments on the role of the Federal Magistrates Court in proceedings for judicial review of decisions of the Refugee Review Tribunal.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424A, 425, 474

SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205

Applicant: SZHQJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 661 of 2007

Judgment of: Scarlett FM

Hearing date: 21 March 2007

Date of last submission: 21 March 2007

Delivered at: Sydney

Delivered on: 21 March 2007

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Mr Markus

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 $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 661 of 2007

SZHQJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal. The decision was signed on 16 October 2006 and handed down on 7 November. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.  The Applicant seeks judicial review of that decision and asks the Court to make orders that the Tribunal's decision should be set aside and his application should be returned to the Tribunal for reconsideration. 

Background

1. The background to this matter is that the Applicant is a citizen of the People's Republic of China.  He arrived in Australia on 21 May 1998 and he applied for a Protection (Class XA) visa on 19 June 1998.  That application was refused by a delegate of the Minister on 30 June 1998. According to the Tribunal decision that is under review, the Applicant was not lawfully notified of that decision until 6 May 2005.  On 3 June in that year the Applicant then sought a review of that decision from the Refugee Review Tribunal. He accompanied his application for a review with a three-paged typed statement. The Tribunal affirmed the delegate's decision on 10 October 2005, and the Applicant then sought judicial review of that decision from the Federal Magistrates Court. 

2. On 20^th June 2006, when the matter was before the Court, I made orders by consent, quashing the decision of the Refugee Review Tribunal and remitting the application to the Tribunal for rehearing and determination according to law. 

3. Whilst the decision of the Tribunal under review refers to orders made by the Federal Court, I am quite satisfied that the orders were in fact made by this Court and indeed by me. As the orders were consent orders, I do not think that anything turns on the fact that I made the orders, rather than another Federal Magistrate. 

4. The Tribunal invited the Applicant to attend a further hearing. The Applicant attended the hearing and gave evidence on 1 September 2006.  The Applicant had submitted items of documentary evidence to the Tribunal for the purpose of his hearing and gave oral evidence about having been involved in the June 4 Student Movement in China and having been a student involved in demonstrations as part of the pro‑democracy movement. The Tribunal asked him a considerable number of questions about his case. 

5. After the hearing, the Tribunal wrote to the Applicant on 6 September 2006. The letter was a lengthy letter and a copy of it can be found at pages 87 to 94 of the Court Book. It is a letter that was quite clearly written to comply with the requirements of s.424A of the Migration Act. The letter told the Applicant that the Tribunal had information that would, subject to any comments that he made, be the reason, or part of the reason, for deciding that he was not entitled to the protection visa.

6. The letter set out, in considerable detail, information about the Applicant's claim, and included references to independent country information about such matters as the protests in Beijing and the activities that took place in the Tiananmen Square period.  The letter also referred to an interview conducted by an officer of the Department of Immigration & Multicultural & Indigenous Affairs with the applicant on 18 March 2005. The letter invited the Applicant to comment on all that information and asked for those comments to be in writing, and in English, by 29 September 2006.  The letter warned the Applicant that, if he did not give his comments by that date, the Tribunal may make a decision on the review of his case without further notice. 

7. The Tribunal noted that it did not receive any response from the Applicant about the letter under s.424A of the Act. The Tribunal then proceeded to make its decision, which was signed on 16 October and handed down on 7 November 2006. A copy of the Tribunal decision record can be found in the Court Book, at pages 98 through to 119. The Tribunal decision referred to the Applicant's claims and quoted from the personal statements that he submitted in respect of his application for a protection visa and his application for review by the Tribunal.

8. The Tribunal considered the oral evidence given to the Tribunal previously constituted on 28 September 2005, and considered the Applicant's oral evidence to the Tribunal on 1 September 2006. The Tribunal decision referred to the s.424A letter, and referred, in some detail, to independent country information.

The Tribunal’s findings and reasons

1. The Tribunal's findings and reasons can be found on pages 115 through to 119 of the Court Book. The Tribunal accepted that the Applicant was a citizen of the People's Republic of China and referred to the Applicant's claims to have been a student at Yantai University, and claimed that he was a student union branch leader, who organised activities to support students who were protesting in Beijing in May and June 1989. The findings and reasons set out the chronology of events that occurred in April, May and June 1989, and referred to certain documents and parts of certain items of information which had been included in the materials referred to in the s.424A letter.

2. The Tribunal was not of the view that the Applicant's claims were credible. The Tribunal took note of the Applicant's responses to the interview with the officer of the Department and found that those responses indicated that the Applicant did not have a genuine fear of harm of returning to China. The Tribunal went on to find that the Applicant lacked credibility, and the Tribunal rejected all of the Applicant's claims in his statement to the Department, his statement to the Tribunal and his claims at the hearing relating to his claims of being involved in the student movement in May and June 1989.  The Tribunal formed the view that the Applicant had fabricated those claims in order to strengthen his claim to refugee status.

3. In the circumstances, the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, and affirmed the decision not to grant the Applicant a Protection (Class XA) visa. 

The application for judicial review

1. The Applicant has sought judicial review of the decision of the Tribunal, by means of an application and an affidavit filed on
   11 December 2006. The Applicant has not filed any written submissions or any amended application. He has made oral submissions to the Court, which dealt, almost entirely, with factual matters relating to his claim. 

2. The grounds contained in the Applicant's application do not allege any jurisdictional error.  In the application, the Applicant says this:

   I am seeking review of the Tribunal's decision in refused and unsatisfied. 

   I am a person to whom Australia has protection obligations under Refugee Convention, and does not satisfy the criterion set out in section 36(2). 

   I am seeking review. The Tribunal does not accept I have a genuine fear of being persecuted for the reason of my political opinion.

3. As I said, those grounds do not allege any jurisdictional error. 

4. In the affidavit filed by the Applicant, he makes two claims which do allege jurisdictional error.  In the affidavit the Applicant says:

   (1) The Tribunal did not observe Migration Act 1958 properly to making decision.

   (2) The Tribunal failed to consider my claims.

   Because of the abovementioned error, I hereby lodge my application for review at Federal Magistrates Court.

5. The fact is, however, that the claims in the affidavit do not contain any particulars. Although the Applicant claims that the Tribunal did not follow the requirements of the Migration Act, he does not set out in any document what the Tribunal did or did not do to act in breach of the Act. As to the claim that the Tribunal failed to consider his claims, if that is to be interpreted as a failure by the Tribunal to consider a relevant consideration, again, there are no particulars. Certainly, the Tribunal's decision contains a detailed analysis of the Applicant's evidence and the claims that he made, and the Tribunal Member appears to have dealt with the Applicant's claims in similar detail. I am unable to discern anything that appears to be material that has been disregarded or ignored by the Tribunal, and the Applicant has provided no such information.

6. As to a failure to comply with any relevant section of the Migration Act, it does not appear to me that the Tribunal failed to comply with s.424A of the Act, as is frequently alleged in applications before the Court.

7. As Mr Markus, solicitor for the First Respondent, commented during the hearing, the s.424A letter that the Tribunal sent to the Applicant after the hearing, seeking his comments, was far more lengthy and detailed than most letters of this type that the Court would see. There is no breach of s.425 of the Migration Act.

8. The Tribunal invited the Applicant to attend the hearing, and he did attend. He was provided with the assistance of an interpreter and he gave oral evidence. He was able to submit documentary evidence to the Tribunal for its consideration. There is no breach of s.425.

9. In my independent examination of the Tribunal decision and supporting documents, bearing in mind that the Applicant is not legally represented, I am not able to see any breach of the Migration Act or any failure to comply with it.

10. The Applicant has given an oral submission to the Court. He told the Court that matters in China, from which his application for a protection visa arose, happened many years ago, and he cannot remember everything clearly, which explains - or may explain - some of the inconsistencies in his evidence.  He reiterated that he still held a fear of returning to China, and he set out a number of factual matters.

11. He claimed to have attended Court so many times that he had difficulty remembering all the details, although he was of the view that the Tribunal hearing in September 2006 was one where he was nervous.  He also told the Court that the documents had been prepared by his lawyer and not by himself; he himself has not studied law. He expressed fear that, if he were to return to China now, he would face unexpected problems. 

12. In a submission in reply, after his use of the phrase "unexpected problems" or "unexpected harm" had been queried by Mr Markus, for the Respondent Minister, the Applicant explained that by "unexpected" he meant things beyond his control. The Applicant, in reply, again referred to incidents that occurred in 1989.  He told the Court that he had changed migration agents on more than one occasion, which would also explain some inconsistencies. 

13. In my view, the Tribunal appears to have gone out of its way to put information to the Applicant under the requirements of s.424A of the Act. The decision largely rests on an assessment of the Applicant's credibility. The Tribunal comprehensively rejected the Applicant's claims on this basis. In my view, there was a considerable amount of evidence before the Tribunal, upon which it will be open for the Tribunal to arrive at that conclusion.

14. The Applicant, in his submissions, dealt mainly with factual matters, although I have explained to the Applicant that the Court does not reconsider matters of fact; matters of fact are matters for the Tribunal.

15. I refer to the decision of Giles J in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3], where his Honour said:

    Insofar as the Federal Magistrates Court is concerned, it has no role to second-guess the Tribunal on matters of fact or judgment.  The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.

16. In my view, no jurisdictional error has been revealed. The jurisdictional errors alleged by the Applicant are unparticularised and unsupported by any evidence.  No other jurisdictional error can be discerned, certainly not on my reading of the Tribunal decision and supporting documents.  I am satisfied that there is no jurisdictional error. 

17. That being the case, the decision is a privative clause decision, as defined by sub-s.474(2) of the Migration Act. Accordingly, the decision is not subject to orders in the nature of certiorari or mandamus that the Applicant seeks. It follows that the application must be dismissed. The solicitor for the Respondent Minister has asked for a dismissal with costs.

18. There is an application for costs on behalf of the Respondent Minister. The Applicant has been wholly unsuccessful in his claim and, in my view this is an appropriate matter for an order for costs. The amount sought is $4,000.00, which is well within the scale provided by the Federal Magistrates Court Rules. I propose to make that order.

19. I note that I have previously ordered that the title of the First Respondent is changed to the Minister's current title.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  29 March 2007