SZHXH v Minister for Immigration
[2007] FMCA 915
•5 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 915 |
| MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – no arguable case – application dismissed at show-cause hearing. |
| Migration Act 1958 (Cth), ss.424A, 476 Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) |
| Applicant: | SZHXH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 868 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 5 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 868 of 2007
| SZHXH |
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 15 March 2007, in which the applicant applies for an order that the respondents show cause why a remedy should not be granted 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 17 January 2007 and handed down on 8 February 2007. The Tribunal affirmed a decision of a delegate made on 21 July 2005 refusing to grant a protection visa to the applicant.
The application was returnable at a first Court date before me on
10 April 2007. The applicant attended on that day and was assisted by a Mandarin interpreter. The nature of the proceeding was explained to her by me and in an information sheet, and the applicant was given an opportunity to file an amended application and any evidence after receiving a referral for free legal advice and a bundle of relevant documents. The applicant was warned that her application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant was sent a referral on 12 April 2007, and has filed an amended application which I shall consider below.
The applicant arrived in Australia in February 2005 and applied for a protection visa on 7 March 2005. Her grounds for seeking protection in Australia against return to the People's Republic of China, were set out in a typed statement. The applicant claimed:
My government is prosecuting me because I openly support and promote the highly controversial issue of the Taiwanese government and their movement for independence and liberation from the Chinese government.
The applicant claimed that she “became an activist” in the course of business contacts with Taiwanese businessmen. She said she discussed the topic of Taiwan with them, and:
Through the discussions of such topic, I became interested about the issue, and wanted to help my friends seek that liberation will occur. I decided to involve myself within the same activist group as these friends of mine, and help them spread their message across to the other workers within the company. The members of the organisation participate in the acts of overt protest/demonstrations, web publishing’s and verbal promotion of our understanding. All of these actions are perceived to be acts of disloyalty, treachery and conspiracy against my country. My actions involved for harsh punishments of the unknown. Soon enough, my superior officer caught on with my successful covert action of supporting my organisation within the company, to which I was able to persuade some colleges to also support Taiwan in favour of liberation.
The applicant claimed that her employer became aware of her political activity, and that she was dismissed and reported to the government authorities. She said “I am definitely certain to say that the Chinese government will take extreme measures in ensuring that such activists groups would cease its operation, and that all members would be apprehended”. She said “I decided to flee the country for the safety of my life”, and claimed that she has been informed by relatives that government officials are looking for her.
No further details were provided to the Department, and no corroboration was provided to the Department nor, on appeal, to the Tribunal.
The delegate refused the application, saying that “it is difficult to accept that the authorities would have allowed the applicant to depart China freely had she been of real interest”.
On appeal, the applicant did not attend a hearing to which she was invited on 9 November 2005, and a Tribunal member proceeded to make a decision. That decision was subsequently set aside by consent order in this Court, due to the Tribunal referring to the contents of her protection visa statement.
After the remitter, the applicant did attend a hearing on 11 December 2006. The Tribunal sets out a description of the hearing in its statement of reasons, and I have no reason to doubt its description. The applicant has not tendered a transcript of the hearing.
The Tribunal discussed with the applicant inconsistencies in her account to the Tribunal of her political actions, when compared to her visa statement. These concern the nature of the group which she had contacts with, and the responses of the authorities and of her employer. Its concerns were then formulated and put to the applicant in a s.424A letter. The applicant did not respond to that letter.
In its statement of reasons, the Tribunal said in relation to the applicant's general credibility:
The Tribunal found the applicant's oral evidence to be vague and unfocused. There were significant inconsistencies not only between the claims in her protection visa application and her oral evidence, but also during the course of her oral evidence to the Tribunal.
The Tribunal identified and discussed these inconsistencies, and explained a finding that it did not accept that “the applicant has a political opinion that motivates her to engage in political activities, on pro-democracy or pro-Taiwanese issues”. The Tribunal rejected these claims “as a fabrication”. The Tribunal, also for that reason, did not accept “that the applicant has suffered any harm from her employers or the PRC authorities as a result of her now dismissed political opinion, actual or perceived”. The Tribunal referred, in support of that further finding, to discrepancies in her evidence concerning her departure from her employment, her travel arrangements and other reasons.
I have considered the reasons of the Tribunal and its procedures, and am unable to identify any arguable jurisdictional error affecting its decision.
The applicant's application and amended application make allegations of jurisdictional error which are devoid of any particulars giving them meaningful content. Her amended application sets out the following grounds:
1.The Tribunal’s S424 letter did not conform with requirements of S424A..
2.The ‘Country Information’ relied upon by the Tribunal was out of date and/or based on hearsay.
3.The Tribunal did not make a decision on my application based on evidence and materials.
4.The decision was biased.
I have carefully considered the applicant's s.424A letter, and I am unable to identify any arguable failure to comply with the obligations under that section.
I have not identified any country information relied upon by the Tribunal. Its reasoning, in my opinion, turned upon only its assessment of the applicant's credibility in relation to her particular claimed history.
In my opinion, the Tribunal's conclusions were clearly open to it on the material before it.
No evidence has been presented giving any substance whatsoever to the allegation of bias.
The applicant attended today, and read a list of general heads of jurisdictional error without presenting any meaningful argument as to how they applied to her case.
On all the material before me, I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r 44.12(1)(a).
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 18 June 2007
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