SZHRY v Minister for Immigration
[2006] FMCA 1596
•24 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHRY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1596 |
| MIGRATION – Protection visa application – unrepresented applicant sought merits review – no jurisdictional error – application dismissed with costs. |
| Applicant: | SZHRY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3503 of 2005 |
| Judgment of: | Baumann FM |
| Hearing date: | 24 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2006 |
REPRESENTATION
| Applicant: | Self Represented |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant shall pay the first respondent’s costs fixed in the sum of $3,000 within 90 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3503 of 2005
| SZHRY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(settled from the ex tempore reasons)
An application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”) was filed on 30 November 2005 and that application came before me today for determination. The basis upon which the applicant sought protection was a claim that as a baptised and practising Roman Catholic he feared persecution if he were to return to the People’s Republic of China.
Background
I adopt a summary of the applicant’s claims made by the learned member of the Tribunal appearing at CB 65, namely:
“The applicant is a man who is separated from his wife and was born on 23 January 1970 in Fujian, People’s Republic of China. His occupation before coming to Australia was as a retail clothing shop owner. He had been self-employed in this position from 1992 to December 2004. The applicant was also running a bar before coming to Australia. The applicant has received eight years of education and speaks, reads and writes Mandarin.”
The applicant stated that he was interested in religion when he was young and he was living in an area where there were many Roman Catholics. The Archbishop was Shudao Yang who was born in Fujian in 1920. The Archbishop graduated from Theology College and served in St Joseph’s Church in Changoi City before moving to Fuqing. He was arrested there in 1955 with many believers and served 26 years in labour reform before being released in 1981. He then resumed his religious work in Fujian. At the time, the applicant was attending middle school and knew only a little about religion. The applicant attended church with other classmates and decided to join in and was baptised on 24 December 1989.
More and more people started to participate in religion and the Chinese Communist Party became afraid. They arrested Archbishop Yang again and imprisoned him for three years. He was arrested many times in the years 1991 to 1998. On one occasion the applicant paid the “bond” to enable the Archbishop to be released. The applicant got to know Archbishop Yang “so much”. He was his father’s friend. He met him and received his education. The Archbishop asked the applicant to study the Catholic religion and he did so. The applicant became an important person in the religion. The applicant was asked by Archbishop Yang to tell people about the underground church; which he did from 2002. The applicant attended this underground church and helped the Archbishop establish it.
Because the applicant was close to the Archbishop and due to his religious background the local government began to watch him. Whenever there was an important day the Fuqing Government tightened its control over him and other Catholic activists. He stated, “Sometimes they can detain you without any excuse in order to scare others”. He was arrested and detained in a labour reform farm. His family and a merciful officer helped him get out of the farm. In 2002 the applicant received his passport. He stated that it took more than two years to get an Australian visa which he received in December 2004.
In the absence of submissions, no challenge to this summary has been made by the applicant.
The applicant attended a hearing before the Tribunal on 21 September 2005. I do not have a transcript of that hearing. However, the Tribunal was concerned about information which, “subject to any comments” by the applicant could be the reason or part of the reason for deciding that the applicant was not entitled to a protection visa. The letter is included at pages 54 to 56 of the court book (CB) and the applicant’s reply at CB 57 to 58.
Tribunal reasons
The learned Member’s reasons are at CB 62 to 72. The learned Member rejected the applicant’s claims and I agree with paragraph 7 of the submissions of the respondent that the Tribunal cited five reasons for doing so. For completeness, I adopt the summary of those reasons as follows:-
“The Tribunal cited five reasons for rejecting the applicant’s claims:
(i)When questioned at the Tribunal hearing as to where he lived before he left the PRC, the applicant was unable to provide the address which was contained in Form C of his application for a protection visa (CB 68.1).
(ii)The applicant’s evidence at the Tribunal hearing in relation to Archbishop Shudao Yang was inconsistent with what was contained in his application for a protection visa and inconsistent with independent information. The Tribunal did not accept that there was any error in the translation at the hearing (CB 68.5-70.4).
(iii)The applicant state in his statement to the Department that he had been baptised on 24 December 1989, however at the Tribunal hearing did not know what Baptism meant. The applicant’s lack of knowledge about baptism and Jesus let the Tribunal to conclude that the applicant was not a Catholic (CB 69.8-70.4).
(iv)The applicant gave evidence to the Tribunal about when he was detained in a Labour reform farm which was inconsistent with the claims he made to the Department (CB 70.5-70.9).
(v)The applicant raised new claims at the Tribunal hearing, which were not contained in his application for a protection visa. The Tribunal concluded that the applicant had raised these claims at the Tribunal hearing in order to obtain a favourable result (CB 71.1-71.5).”
The Tribunal considered the submission made by the applicant in reply to the section 424A letter that he:
“Made some inconsistent claims before the Tribunal solely because I was too nervous to be there. I am not familiar with the hearing style and all the atmosphere in the courtroom.”
The Member also rejected this contention and gave cogent reasons for doing so at CB 71-72. In conclusion, the learned Member made the critical findings that:
“The applicant is not a Roman Catholic and has never been a Roman Catholic; that the applicant has never known Archbishop Shudao Yang; and his claims in relation to the underground church, and being detained are not creditable. As a result, because these claims are central to his overall claims, it leads the Tribunal to conclude that none of his claims can be accepted as true.”
Amended application
The applicant’s amended application filed 6 June 2006 pleads three grounds for review as follows:
“1.The RRT failed to carry out its statutory duty and failed to review my application. In their letter on 12 August 2005, RRT stated: “The Tribunal … is unable to make a decision in your favour on this information alone.” That meant, they had made their decision in their mind before I attended the hearing. I think it is unfair for me.
2.The Tribunal’s decision was based on unwarranted assumptions and/or was based on reasoning which was irrational and/or illogical.
3.Procedures that were required by the Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not observed. The decision was an improper exercise of the power conferred by the Migration Act and Regulations.”
Oral submissions by the applicant
The applicant appeared before me today assisted by an interpreter. Ms Johnson, who appeared on behalf of the respondent, indicated that the applicant had been provided a further copy of the Minister’s submissions this morning. I am satisfied that by reference to exhibit 1, being a letter dated 24 August 2006 to the applicant at his address for service, that the applicant has had the respondent’s submissions since shortly after 24 August 2006.
As a result, and bearing in mind that the applicant is unrepresented today, I am satisfied that it would not have been appropriate to adjourn the proceedings to allow him to respond formally to the submissions of the respondent. In any event, he did not seek any adjournment. He has had, in my view, more than sufficient time to respond to the written submissions. It is noted that he has failed, as directed by the court, to file any written submissions himself. Such directions appear to have been made by a Registrar of this Court on 12 January 2006.
The grounds of the application are not particularised. I am not satisfied that the Tribunal sending to the applicant the standard letter in which they indicate that on the material alone a decision favourable to the applicant cannot be made is capable of being construed as a premeditated finding by the Tribunal that the Tribunal will dismiss the application whatever information might be provided by the applicant.
Conclusion
The applicant essentially seeks, it seems, for this Court to undertake some form of merits review. It is to be assumed that he is not happy with the finding by the Tribunal that he is not a Roman Catholic; never was a Roman Catholic; has not met, as he claimed, Archbishop Yang; and had not practised in the Christian underground Church in China his alleged faith.
The path which the applicant seeks this court to take to review the merits of the decision is not permissible. I agree with the written submissions of the respondent (filed 24 August 2006) that the Tribunal properly complied with procedure and:
“undertook an extensive analysis of the applicant’s claims and rejected them on the basis of strong credibility findings.”
Put another way, the applicant’s claims were rejected because the applicant was not regarded as credible by the Tribunal. Such a finding is a matter for the Tribunal and was, on the evidence, open to it. As a result there has been no jurisdictional error identified by the applicant, or detected by me. The decision is therefore a privative clause decision and I am bound by law to dismiss it. It is appropriate that costs follow the event. I will make an order that the applicant make a contribution to the costs of the first respondent fixed in the sum of $3,000 within 90 days.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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