SZIGY v Minister for Immigration
[2007] FMCA 2005
•4 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIGY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2005 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZIGY”. |
| Migration Act 1958 (Cth), ss.91R, 91X, 424A Migration Regulations 1994 (Cth), reg.4.35 |
| NATI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZIGY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2964 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 12 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Ms A Mansour of Clayton Utz |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 13 October 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2964 of 2006
| SZIGY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant is a 41 year old male from Ma Dian city, Henan Province, the People’s Republic of China. He was employed as manager of a Knitting Trading Company but left China because he claims persecution as a Falun Gong practitioner.
The applicant claims he became a member of Falun Gong in 1999 before it was banned by the authorities. Following the banning of Falun Gong, he organised for his work colleagues to meet secretly and practise Falun Gong, helping them overcome their fears and continue the practice. He states that he went to Beijing to participate in Falun Gong activities. In 2004, the applicant was detained, interrogated, beaten and held by the police for 15 days. He states that his wife paid a large bribe for his release and obtained a visa for him to come to Australia.
A delegate of the first respondent refused to grant the applicant a protection visa. The applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”), who upheld the delegate’s decision. The applicant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court, however, the matter was remitted to the Tribunal by consent. On 28 August 2006 and after holding a hearing and issuing a s.424A letter, the second Tribunal again upheld the delegate’s decision. The applicant now seeks judicial review of the second Tribunal’s decision.
A Court Book (“CB”) prepared and filed by the first respondent's solicitors is marked Exhibit “A”. This document was read into evidence.
With leave of this Court, the applicant filed an amended application which contained five grounds of review.
Consideration
At first Court date directions, the applicant indicated to the Court that he wished to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice. The applicant was allocated a panel adviser under the scheme. He was also granted leave to file an amended application after his conference with the panel adviser. The amended application filed contains formulaic grounds regularly seen in this Court in recent applications.
Ground one
1. The Tribunal failed to carry out its statutory duty
Particulars
(a) The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
(b) The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958 s.424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
(c) The above particulars had to be provided in writing: SAAP v Minister for Immigration and Multicultural and Industrial And Ethnic Affairs (2005) HCA 24, per McHugh J at [68] and [77], Hayne J at [180] and [208].
(d) The information to be given extends to the information given by the Applicant to the First Respondent as part of his application for a visa: Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27 at [17]
(e) The Tribunal based it’s findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by s.424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.
The applicant did not submit any written submissions and also declined to make oral submissions.
Ms Mansour, for the first respondent, submits that the Tribunal complied with its obligations under s.424A of the Migration Act 1958 (Cth) (“the Act”) by sending a letter to the applicant inviting his comments on the relevant information. The letter complied with requirements s.424A and the notice requirements: reg.4.35 of the Migration Regulations 1994 (Cth) (“the Regulations”).
I accept the submissions made by Ms Mansour and agree that this ground has no merit and cannot be sustained. Unfortunately the applicant is relying on a formulaic application which bears no relevance to the Tribunal decision. No s.424A type letter was issued to the applicant in respect of the original application whereas the Tribunal in this case had issued such a letter. On the information available from the Court Book and the decision record, it appears the Tribunal complied with the requirements of both the Act and the Regulations.
Ground two
The Tribunal failed to refer to sufficient independent information for the consideration of my application.
This ground of review is not particularised and no supporting submission has been made by the applicant.
Ms Mansour submits that the applicant has not indicated what information the Tribunal was obliged to refer to. It is submitted that it is clear from the Tribunal decision and, specifically, its findings and reasons, that it referred to country information to assist in determining whether it should affirm the delegate’s decision. Further it is a matter for the Tribunal as to what information it refers to and the extent to which it relies on it: NATI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
I agree with the submission made by Ms Mansour in respect of ground two. Again, this ground is a broad general allegation of jurisdictional error which is not particularised or supported by any submissions. The general allegation of error has little relevance to this Tribunal decision.
Ground three
The Tribunal relied upon irrelevant materials for the consideration of my application
This claim is again without particularisation or supporting submission.
Ms Mansour contends that the applicant has not shown how the information relied on by the Tribunal was irrelevant and submits that this ground cannot be made out. I agree with her submission and rely on the comments that I have made above in respect of the relevance of grounds to this Tribunal decision.
Ground four
The Tribunal failed to assess the chance of my persecution on my return to China, and therefore the Tribunal did not consider my application according to s.91R of the Migration Act 1958.
Ms Mansour submits that the Tribunal clearly considered whether the applicant had a real chance of persecution on his return to China and was not satisfied that he did. It found that the applicant was not a witness of truth and that he had created his claims in order to establish grounds for the grant of a protection visa. I agree with this submission on the basis as previously stated. This ground of review cannot be made out.
Ground five
The Tribunal did not provide me an adequate opportunity to respond the substance of the information.
Ms Mansour contends in written submissions that insofar as this is an allegation that the applicant was not afforded sufficient time to respond to the s.424A letter dated 25 July 2006, the applicant was given till 17 August 2006 to respond. That is, in accordance with reg.4.35 of the Regulations, the applicant had 14 days to respond. Accordingly, the applicant was afforded the prescribed period to respond.
The applicant was also invited to attend a hearing with the Tribunal and the content of the hearing was summarised in the decision under “Claims and Evidence” (CB 96-97). The applicant failed to identify the areas in which he was not given sufficient time to explain his claims. He also did not tender Tribunal hearing tapes or a transcript of the hearing. In the absence of that material it is not possible to determine whether the applicant was interrupted or denied the opportunity to express his views. The only material before this Court is the Tribunal decision and it is no apparent from that document that the applicant was denied that opportunity. I am not satisfied that any error by the Tribunal in respect of this issue has been identified and this ground of review cannot be sustained.
Conclusion
The applicant appeared at the hearing as a self-represented litigant assisted by a Mandarin interpreter. The applicant filed an amended application containing five grounds of review, none of which are particularised and in a format commonly seen in this Court. The grounds are general statements about judicial review of administrative decisions in refugee matters, none of which bear a direct relationship to the Tribunal decision subject to review in this Court. This formulaic template of grounds is commonly appended to applications using mailboxes at 226 Elizabeth Street, Surry Hills.
Ms Mansour, appearing for the first respondent, assisted the Court in the preparation of written and oral submissions addressing each of the issues raised in this application. I accept those submissions as they appropriately address the grounds raised in the amended application. As the applicant appears to have no comprehension of the purpose of the judicial review and is relying upon inappropriately formatted general grounds, this places an obligation on the Court to independently consider whether any argument based on the Court Book and the Tribunal decision could give rise to a jurisdictional error. After reviewing this material, I am satisfied that it is not apparent that any ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process. The application should be dismissed.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 4 December 2007
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