SZIJF v Minister for Immigration
[2006] FMCA 885
•2 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIJF v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 885 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant is a citizen of the People's Republic of China claiming fear of persecution on the ground of his religious belief – whether the applicant ever asked the Tribunal to call any witnesses – there is no obligation on the Tribunal to disclose its thought processes to the applicant during the hearing. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZIJF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 502 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 June 2006 |
| Date of Last Submission: | 2 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00 and I will allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 502 of 2006
| SZIJF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application to review the decision of the Refugee Review Tribunal. The decision was made on 15th December 2005 after a hearing that took place on Monday the 5th of that month.
The Tribunal handed down its decision on 10th January 2006 and it affirmed the decision of a Delegate of the Minister not to grant the Applicant a Protection Visa.
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 13th October 1999. He lodged an application for Protection Class XA Visa on the 27th of that month and that application was refused.
It is not relevant to discuss the circumstances that led to a
re-notification by the Department of Immigration & Multicultural & Indigenous Affairs, as it was in those days, on 27th September 2005, but the Applicant applied for a review of the decision on
27th October 2005.
The Applicant attended a hearing of the Tribunal on 5th December and gave evidence that he claimed a well-founded fear of protection because of his religious belief. He said that his grandparents and parents were Christians as were his brothers and sisters and himself. He claimed to have left China after his family were being watched by strangers and one day his brother disappeared. He said that he could not live in China any further because of the activities of the Chinese government.
At the hearing the Applicant gave evidence and the Tribunal asked him a number of questions about his religious belief. The Applicant told the Tribunal that if he were to return to China he was afraid of being monitored by the PSB and being detained and punished by them.
The Applicant attended the hearing with a migration advisor whom the Applicant had only recently appointed. The Applicant's advisor sought "a few more days" to consult with the Applicant and make further submissions, if possible. The Tribunal agreed to allow a further period of one week and I note that at page 68 of the Court Book the Tribunal member is said to have observed frankly that the Tribunal found the Applicant's knowledge of Christianity to be scant, but said that the Tribunal would consider any further references and other material.
Despite the time given for a further submission the Tribunal did not receive any further submission.
The Tribunal's findings and reasons are set out at pages 68 through to 73 of the Court Book. The Tribunal accepted that the Applicant was a national of the People's Republic of China and assessed his claims against that country. The Tribunal however was not satisfied that the Applicant was a Christian or a member of an underground Christian church. On pages 70 through to 73 of the Court Book the Tribunal sets out five basic reasons why the Tribunal was not satisfied about the Applicant's claims.
First, the Applicant's knowledge of the basic tenets of the Christian faith did not, in the Tribunal's opinion, conform with that of a person who claimed to have been born into a Christian family and to adhere to that faith since birth.
Second, the Tribunal found the Applicant's account of his religious practice in China to be unconvincing.
Third, the Tribunal noted that whilst he and his parents decided that he should leave China for his own safety the Tribunal found that the Applicant's account of why he had to seek refugee protection to be contrived.
Fourth, the Tribunal considered that the Applicant's conduct during more than six years in Australia did not support his claim to be a practising Christian. Despite the Applicant's claims to have attended two churches the Applicant's evidence was vague and he was only able to nominate one person, a Pastor Chang, who would be able to give evidence on his behalf. This person had only known the Applicant for less than a year, as Pastor Chang has only arrived in Australia for about a year before the Tribunal hearing.
The Tribunal was not satisfied with the Applicant's explanation that he was afraid to tell fellow Christians about his past experiences as a Christian in China because he was afraid, and formed the view that the Applicant did not speak about those experiences because his claim was not truthful.
The fifth reason was that the Applicant had been in Australia for more than six years and it had all that time to consider what corroborative evidence he might be able to obtain to substantiate his claims.
Indeed, the Tribunal noted that it had offered him further time to submit material after the hearing, but nothing had been received.
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for reasons of religion, being his now rejected claim of Christianity or political opinion, criticism of the authorities of the People's Republic of China or for any other convention related reason. The Tribunal affirmed the decision not to grant the Applicant a Protection Visa.
The Applicant filed an application for review of that decision on
16th February 2006. He sets out three grounds:
(1)The evidence I provided to RRT from my church in Australia wasn't given consideration by the case officer;
(2)I requested for another hearing. My application was not given any answer;
(3) The decision was made lack of ground.
The Applicant filed an amended application by leave with the consent of the lawyers for the Minister on the day of the hearing. In that amended application the Applicant said that he had expressed to the Tribunal member that he had church members whom he would like to have called as witnesses. He also criticised the Tribunal for not giving him the opportunity to comment about the decision that the Tribunal member was going to make on his application.
The Applicant referred to the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2, and expressed the view that his application was very similar to the situation in SZEEU (supra).
The Applicant also complained that even though he had been referred to a lawyer on the Refugee Review Tribunal pilot scheme, he did not receive any contact or assistance from that lawyer.
The Applicant reiterated at the hearing that he had wished to call evidence from witnesses who were church members, but was not given the opportunity to do so. He said that the first time he told this to the Tribunal was at the hearing. He told the Court that Pastor Chang could give evidence on his behalf, that he had known that person more than half a year and he did not know that person in China.
The Respondent submits that of the three grounds in the original application the only one that made any sense was the first, namely that the Tribunal did not give consideration to evidence about the Applicant's church in Australia.
It was submitted, and I believe correctly, that the difficulty with this ground, as the Tribunal noted, was that the Applicant did not put forward any corroborative evidence, either from China or from any church or from any church members. In the circumstances there was no error in the Tribunal failing to have regard to that evidence, or more correctly possible evidence. It was a matter for the Applicant to put forward whatever claims in evidence he wished in support of his application for review and then it was a matter for the Tribunal to assess whether, on the basis of that material, it was satisfied that the Applicant met the criteria for the grant of a visa; see Abebe v Commonwealth (1999) 197 CLR 510 at 576, particularly paragraph 187 in the decision of Gummow and Hayne JJ.
The Respondent also submitted that the Tribunal's decision turned upon its assessment of the evidence given by the Applicant and the Tribunal's findings of fact made on the basis of that assessment. Having rejected the Applicant's factual claims relating to religious persecution it was open to the Tribunal to conclude that the Applicant did not satisfy the criteria for grant of a visa.
In oral submissions counsel for the Respondent submitted that there was no evidence to suggest that the Applicant ever told the Tribunal that he wished to call witnesses to give evidence. He certainly did not do so before the hearing and the only references to witnesses who could corroborate his claim appear at pages 66 and 68 of the Court Book. At page 66 the Applicant referred to Pastor Chang, to whom I have previously referred, and provided a mobile telephone number for the pastor. The fact that the Applicant provided a mobile telephone number did not raise any obligation on the Tribunal to call the pastor to make any inquiries from that person.
The Tribunal also noted that when the Tribunal asked the Applicant if had discussed his past experiences in China and his fears about returning there with Chinese Christians the Applicant said that he had not told anyone because he was afraid. The Tribunal said that the Applicant declined to state more specifically who he was afraid of.
I am not satisfied there is any evidence that the Applicant sought to have the Tribunal call witnesses on his behalf. He certainly did not do so before the hearing and I am not satisfied that he made that request clear at the hearing. In any event, as the Tribunal noted at page 71, the Applicant has been in Australia for more than six years so he has had ample time to consider what corroborative evidence he might need.
The Applicant seeks to rely on the Full Court Decision in
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs. I am not satisfied that his case represents any parallel to that of SZEEU at all. It is not the case that s. 424A of the Migration Act raises any obligation on the Tribunal to disclose its thought processes to the Applicant.
The Tribunal considered the Applicant's evidence and was not satisfied on the basis of the evidence that the Applicant gave to the Tribunal. This was all information that the Applicant had given to the Tribunal for the purpose of the review and as such comes under the protection of sub-s.424A(3)(b).
I note that the Applicant complains that he did not receive legal advice from the panel solicitor. That is a matter of concern, that is has been over a month since this matter was before the Court and a referral was made.
Whilst I raise the Applicant's claim with the officer of the Federal Court who makes those referrals, the fact that the Applicant claims that he did not receive any legal advice from that person is not a matter to my mind that goes to the proceedings before me.
The fact is that the Tribunal did not accept the Applicant's account about the basic part of his claim. The tribunal did not accept that he was a Christian who had been persecuted for reason of religion.
The Tribunal did not accept that the Tribunal had any fear of persecution by reason of political opinion and there was, to say the least, a paucity of evidence about that.
To my mind no jurisdictional error has been demonstrated. I have read through the decision myself and I see no sign of jurisdictional error that has not been brought to my attention by the Applicant.
The decision of the Tribunal is a privative clause decision under the provision of s.474 of the Migration Act and consequently, as there is no reviewable error, the application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant says that he has no work in Australia and has no money to pay the costs.
Whilst that is not a matter that I would apply in deciding whether or not an order for costs should be made it is certainly something which I will take into account in assessing time to pay.
Costs follow the event as a normal course in this jurisdiction and as the Applicant has been wholly unsuccessful in his case I see no reason why I should not make an order for costs.
The amount of $5,000.00 is in accordance with the Federal Magistrates Court Rules and it seems to me to be an appropriate figure. I will allow time to pay and I propose to allow six months.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 20 June 2006
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