SZHTD v Minister for Immigration
[2006] FMCA 1456
•3 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHTD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1456 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – asserted breach of s.424A of the Migration Act 1958 (Cth) – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZHTD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3560 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 3 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2006 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondents: | Ms M Jolley Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3560 of 2005
| SZHTD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 22 November 2005.
On 5 December 2005 the applicant filed an application in this Court for an order showing cause why relief should not be granted.
That application was clearly made within time. The application came before Registrar Kavallaris who made procedural orders on 17 January 2006. I amended those orders on 6 July 2006. Among other things I dispensed with the need for a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I directed that the matter be listed for a final hearing today.
The background to this matter is otherwise set out in the Minister’s outline of written submissions filed on 22 September 2006. I adopt as background for the purposes of this judgment paragraphs 1 through to 4 of those written submissions:
The applicant, a citizen of the People’s Republic of China, arrived in Australia on 25 February 2005. On 21 March 2005, he lodged an application for a protection visa.[1] On 28 April 2005, a delegate of the Minister refused to grant a protection visa.[2] On 31 October 2005, following a hearing that extended over two days, the RRT affirmed the delegate’s decision.[3]
On 5 December 2005 the applicant filed an application in the Federal Magistrates Court under r.44.05 of the Federal Magistrates Court Rules seeking an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act in respect of the decision of the RRT made on 31 October 2005 and handed down on 22 November 2005.
Applicant’s claims and RRT’s findings
The applicant claimed he suffered persecution because of his involvement with a freedom and democracy movement in China and his involvement with Falun Gong (FG).[4] He claimed to have been accused of attacking a policeman and was wanted by police and the local government.[5]
The RRT found the applicant’s claims were entirely dependent on acceptance of him as a credible witness.[6] The RRT concluded the applicant was not generally credible.[7] It found the applicant’s responses during the hearing were unconvincing, unpersuasive and implausible[8] and consequently rejected all of the applicant’s material claims.[9] The RRT found that the applicant’s knowledge about FG was minimal and his reasons for supporting FG unconvincing.[10] The RRT also found it implausible that the applicant had not been arrested, even though he claimed he had been accused of attacking a policeman. The RRT was not satisfied that the applicant was of adverse interest to the authorities or that he had to depart China on false passport.[11] It was not satisfied that he was owed protection obligations.
[1] court book, pages [1]-[26]
[2] court book, page [27]
[3] court book, page [57]
[4] court book, page [61]
[5] court book, pages [64] – [65]
[6] court book, page [66]
[7] court book, page [66]
[8] court book, page [67]
[9] court book, page [66]
[10] court book, pages [66] – [67]
[11] court book, page [67]
The applicant relies upon an amended application filed on 24 May 2006. The only ground advanced in that amended application is an asserted breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”).
The RRT hearing is noteworthy in that it occurred over two days.
The hearing commenced on 31 August 2005 and was completed on 1 September 2005. On page 62 of the court book, which I received as evidence, the presiding member notes that on 31 August 2005 the applicant revealed a different identity to that he had asserted in his protection visa application. It appears that the applicant abandoned the details in that protection visa application with the exception of the protection visa claims reproduced on page 19 of the court book.
The presiding member discusses what occurred at the hearing on 1 September 2005 on pages 62 to 65 of the court book. It appears that the applicant was questioned at length about his claims. It is clear that the applicant was not believed. On page 66 of the court book the presiding member said:
The Applicant’s claims are entirely dependent upon an acceptance of him as a credible witness. The Applicant was not generally credible and the Tribunal does not regard the inconsistencies and other matters dealt with above as explicable in terms of any difficulty he faces as an asylum seeker. The Tribunal does not accept the Applicant as credible and consequently rejects all of his material claims.
It is apparent from what follows on pages 66 to 68 of the court book that the presiding member reached that conclusion on the basis of what occurred at the hearing conducted on 1 September 2005. The relevant information that was determinative was not the protection visa claims by the applicant but his evidence at that hearing. That was not disclosable information: see s.424A(3)(b) of the Migration Act. I agree with and adopt for the purposes of this judgment, paragraphs 7 and 8 in the Minister’s written submissions:
The RRT relied on information in relation to when FG practitioners were prohibited from practising in China.[12] At the hearing, the RRT questioned the applicant on this issue.[13] The applicant’s minimal knowledge of FG together with his reasons for supporting FG led the RRT to conclude that his evidence was unpersuasive.[14] Independent country information and evidence given by the applicant at the hearing fall within the exceptions provided in s.424A(3)(a) and (b) of the Act. There was no obligation on the RRT to comply with s.424A of the Act in respect of this information.
The RRT found the applicant’s claims were entirely dependent upon acceptance of him as a credible witness. The RRT’s conclusion that the applicant was not a credible witness was open to the RRT on the materials and was within its jurisdiction. Findings on credibility are matters of fact for the RRT alone and should not be disturbed by the Court.[15] Furthermore, the RRT’s findings on the applicant’s credibility were based on the evidence provided by the applicant at the hearing which falls within the exception provided in s.424A(3)(b). There was no obligation on the RRT to comply with s.424A in respect of this information.
[12] court book, page [66]
[13] court book, page [64]
[14] court book, page [67]
[15] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67].
No breach of s.424A of the Migration Act has been established.
No other jurisdictional error is apparent to me. It follows that the RRT decision is a privative clause decision and the application must be dismissed. I will make that order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,300.
The applicant did not wish to be heard on costs. Under the Court rules the Minister would be entitled to costs in the sum of $5,000. However, the Minister properly seeks a lesser amount. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $3,300.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 October 2006
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