SZHTK v Minister for Immigration
[2007] FMCA 855
•28 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHTK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 855 |
| MIGRATION – RRT Decision – Chinese applicant fearing persecution for political activities in 1999 – Tribunal found no real chance of persecution – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 474, 476 |
| Applicant: | SZHTK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3578 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 28 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3578 of 2005
| SZHTK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 7 December 2005, which seeks orders by way of judicial review under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 October 2005 and handed down on 3 November 2005. The Tribunal affirmed a decision of a delegate made on 9 June 2005 refusing to grant a protection visa to the applicant.
Under s.476 the Court has the same original jurisdiction in relation to migration decisions as the High Court has under s.75(v) of the Constitution, but the Court's powers are confined by s.474 so that I do not have power to remit the matter to the Tribunal unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not myself have power to assess whether the applicant would face persecution in her country of nationality, nor whether she is entitled to a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia in November 2004 on a one month visitor's visa, and on 20 December 2004 lodged an application for a protection visa. The application stated that she received no assistance when doing so, and attached a brief typed statement explaining her reasons for seeking protection in Australia against return to the People's Republic of China.
In the statement, the applicant referred to two people who she said had established a branch of the “Democratic Party” in 1998 in her town, including Mr X. She said:
I helped Mr X to develop the branch in (her town) and I was his assistant in (that town). We promoted "Democratic Party" and persuaded people around to join it. In 1999 we were told that this is an illegal underground party and all branches must be closed down. When Mr X was sentenced to five year imprisonment, as his assistant, I helped him to settle some work in (her town) and during this period of time, I was detained for 3 days as they suspected that I had been in contact with Mr X and I was a member of “Democratic Party”. As they could not find sufficient evidence, I was released. However, I had very hard time when I was detained. I was beaten and could not have sufficient food and sleep. In June 2004, when the government became cautious about “Democratic Party” again, they started to investigate me again, worrying about my safety, as I already had my passport ready in 2002, I left China for protection in Australia. I will be subject to one year imprisonment on my return to China; they have got enough evidence to charge me. I hope that Australia can protect me.
No further details were given to the Department, and no corroboration was ever provided to the Department or the Tribunal of these claims.
The delegate refused the application, suggesting that the ability of the applicant to depart China freely indicated that she was not of interest to the authorities.
On appeal, the applicant did not appoint an agent. The applicant form signed by the applicant advised her: “with this application you should give us any information, documents or submissions that you want the Tribunal to consider in support of your application, or send them to us as soon as possible”. Similar advice was contained in a letter posted to the applicant acknowledging receipt of the application on 25 July 2005.
The applicant was again invited to “send us any new documents or written arguments you want the Tribunal to consider” in a letter dated 2 September 2005 inviting her to attend a hearing of the Tribunal on
29 September 2005. That letter drew the applicant's attention to the fact that the Tribunal was unable to make a decision in her favour on the information currently before it.
The applicant did attend the hearing, and the Tribunal gave a brief description of the hearing in its statement of reasons. Neither party has tendered a transcript of the hearing to explain further what happened.
According to the Tribunal it examined her passport, and questioned her about her claimed involvement in the “Democratic Party” in 1998 and 1999. The Tribunal said that she maintained that she was an “assistant secretary”, but she “was vague about her role and functions and about the structure of the party.” The applicant maintained that she had contact with Mr X until he was arrested some time in the second half of 1999, and stated that she lost contact with the party after it became illegal:
The Applicant stated that she had not had contact with Xu after 1999 because he was arrested. This had been in the second half of 1999; she had seen him regularly from about June 1998 until sometime in the second half of 1999. The Applicant stated that she lost contact with the Party after it became illegal. Towards the end of 1999 she had been detained and questioned for three days but had been released because they did not have evidence. Nothing else had happened after that. The Applicant confirmed that there was nothing else significant or relevant to her claims which she had not mentioned.
The Applicant stated that she decided to leave China in 2004 because she had heard in June 2004 that the authorities were investigating again and feared she might be detained and questioned again; she did not know. However, nothing had happened in the ensuing period up to her departure from China in late November 2004 while she was waiting for her visa. If there had been further investigations, she did not know.
At the conclusion of the hearing, the Tribunal gave to the applicant a letter, inviting her to comment on information suggesting that, if Mr X was a national leader of the Democratic Party with a similar name, that person had in fact been imprisoned in 1998, and not 1999. The applicant was invited to comment in writing, and did so on the same day, maintaining that she was referring to a different Mr X. Her letter also said:
Meanwhile, I need to have some time to provide you more evidence about my application.
There is no evidence before me that the applicant made such a request at the hearing, nor that she ever explained any further evidence which she wished to present. In its statement of reasons the Tribunal said, in relation to the request for more time:
The Applicant did not state how much time was sought, what evidence she was proposing to provide, or from where it was to be obtained. No further evidence had been foreshadowed or requested at the hearing (other than the matter dealt with in the preceding two paragraphs). The Tribunal notes that the Applicant first lodged her protection visa application with the Department in December 2004, some ten months ago. The Tribunal is satisfied that the Applicant has had adequate time to obtain and present relevant material. The Tribunal also attaches weight to the statutory injunction to be “quick” (s.420(1) of the Act). In the circumstances, the Tribunal is not prepared to allow additional time for unspecified further material.
Under the heading “Findings and Reasons”, the Tribunal referred to the applicant's evidence at the hearing and said:
The Tribunal is satisfied that the Applicant had only a minor involvement in the China Democracy Party in 1998/1999, with no significant organisational activity or profile, and has had no political involvement or activity since that time.
The Tribunal accepted that the applicant had referred to a different Mr X, and noted that the person named by her was not: “listed in sources…as among the national leaders or founders of the Party”. The Tribunal accepted that she had had contact with a party organiser named Mr X as claimed.
The Tribunal's conclusion as to the risk facing the applicant of persecution if she returned to China was:
The Tribunal is satisfied that the Chinese authorities do not have any serious adverse interest in the Applicant. This is underlined by the fact that the Applicant has not claimed that there has been any further contact or questioning or harassment by the authorities since 1999; that the Applicant was able to obtain a PRC passport in her own name in 2002; and that the Applicant was able to leave China openly and without difficulty using the passport in her own name in November 2004.
The Tribunal does not accept that the Applicant is sought by the authorities in China in relation to political activities or for any other reason and is satisfied that on return to China the Applicant does not face a real chance of persecution by reason of her actual or imputed political profile and activity.
I have considered the procedures and reasoning of the Tribunal, and am not satisfied that they reveal any jurisdictional error affecting the decision of the Tribunal.
The applicant's original application contained an argument which is repeated in an amended application. This makes reference to the factual aspects of the applicant's claim, including some which do not appear to have been presented to the Tribunal. To the extent that they do this, they do not provide an argument raising jurisdictional error.
There are two arguments which are presented in the amended application, which might amount to jurisdictional error. The first criticises the Tribunal's failure to provide the applicant with more time to present evidence supporting her refugee claims. However, in the circumstances I have recounted above, the Tribunal correctly identified that the applicant had been given more than ample time to present evidence in support of her claims to the Tribunal. If the proceeding was subject to ordinary rules of procedural fairness, then I would not find any failure on the Tribunal's part when refusing more time.
However, I also accept the submission of counsel for the Minister that the applicant's entitlement to present material to the Tribunal is confined by the procedures in Pt.7, Div.3 of the Migration Act, and that rights of procedural fairness are otherwise excluded by s.422B. In my opinion, there was no procedure required to be followed by the Tribunal under Div.3, which it failed to afford the applicant under any of the procedural obligations of the Tribunal.
The second contention in the amended application which raises jurisdictional error, is that the Tribunal failed to comply with its obligations under s.424A(1) by not allowing the applicant to make written comments to the Tribunal. However, the argument which is presented misconceives the extent of the Tribunal's obligations, by suggesting that all of the information relied on by the Tribunal was obliged to be put to the applicant in writing. However, s.424A(3)(b) excludes information given by the applicant to the Tribunal. In the present case, in my opinion, the Tribunal relied only on such information when assessing her risk of persecution if she returned to China.
I raised with the counsel for the Minister, the Tribunal’s statement:
The Tribunal notes that Mr X referred to by the applicant is not listed in sources (including that cited) as among the national leaders or founders of the party, despite the applicant's earlier claim that he was such. (my emphasis)
I suggested to counsel that this might have been a reference to the applicant's original statement in her visa application. However, on reflection I think it is probably a reference to what the applicant told the Tribunal at the hearing, where she is recorded as referring to Mr X as one of the “founders” of the party. In any event, in my opinion, the Tribunal's reference to “despite the applicant's earlier claim” did not provide a part of its reasons for affirming the delegate's decision.
The applicant was not, in her written application or in her submissions to me today, able to identify any particular information which she says fell within s.424A(1) and I have not been able to identify any. For that reason I do not think this ground succeeds.
Taking into account all that has been put to me by the applicant, I am not satisfied that the Tribunal's decision was affected by jurisdictional error. It therefore is a privative clause decision, and I must dismiss the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 5 June 2007
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