SZIJG v Minister for Immigration

Case •

[2007] FMCA 1021

•

21 June 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIJG v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1021
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of the Indonesia claiming fear of persecution on account of his Chinese ethnicity – whether Tribunal failed to comply with Migration Act 1958 (Cth) s 424A – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 424A, 474
SZAGF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 82 ALD 364
Re Minister for Immigration & Multicultural Affairs & Another; Ex parte Miah (2001) 206 CLR 57
SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478
Applicant: SZIJG
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3708 of 2006
Judgment of: Scarlett FM
Hearing date: 21 June 2007
Date of last submission: 21 June 2007
Delivered at: Sydney
Delivered on: 21 June 2007

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Lloyd
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Citizenship.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $4,000.00. 

  4. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3708 of 2006

SZIJG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal decision was handed down on 16 November 2006 after a hearing which took place on 13th September 2006. The decision of the Tribunal was to affirm a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The Applicant now seeks an order setting aside the decision of the Refugee Review Tribunal and remitting the Applicant's application to the Tribunal for determination according to law.

Background

  1. The background to this matter is that the Applicant is a citizen of the Republic of Indonesia. He arrived in Australia on 12 August 2005 and applied for a Protection (Class XA) visa on 19 September in that year.  On 23 September 2005 his application for a visa was refused. The Applicant then sought a review of that decision from the Refugee Review Tribunal.  The Tribunal originally affirmed the decision of the delegate but the Applicant sought judicial review of that decision from the Federal Magistrates Court and on 5 June 2006 the Federal Magistrates Court made orders by consent setting aside that decision and remitting the matter for reconsideration by the Tribunal.

  2. The Tribunal invited the Applicant to attend a hearing. That hearing took place on 13 September 2006. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Indonesian language. The Applicant told the Tribunal that he feared persecution if he were to return to Indonesia because he is a person of Chinese ethnicity.  He said that he had felt under pressure from native Indonesians known as Pribumi who dislike Chinese.

  3. He told the Tribunal that his wife was an Indonesian but of Muslim religion. The Applicant himself is a follower of a Christian religion.  The Tribunal set out in its decision, a lengthy summary of the Applicant's evidence. The Tribunal asked the Applicant a number of questions about his evidence and also put to him that his comment, "country information" about the situation of Chinese in Indonesia, particularly in Jakarta.  The Tribunal referred to the 1998 anti-Chinese riots that had taken place and the continued existence of some discrimination against Chinese people in Indonesia.

  4. A copy of the Tribunal decision can be found at pages 91 through to 102 of the Court Book. Apart from a summary of the Applicant's evidence, the decision also refers to external information by way of independent country information to which the Tribunal referred. The matter was set out at pages 97 and 98 of the Court Book.

The Tribunal’s findings and reasons

  1. The Tribunal's findings and reasons are set out on pages 99 through to 102. The Tribunal accepted that the Applicant was a national of Indonesia and relied on, not only the Applicant's oral evidence, but also on a copy of the Applicant's passport that had been produced.

  2. The Tribunal accepted that the Applicant was of Chinese ethnicity and a follower of the Christian religion.  The Tribunal noted the Applicant's claim that he feared persecution in Indonesia for reasons of his Chinese ethnicity and noted the fact that the Applicant did not believe that the authorities in Indonesia would protect him from any future harm.  The Tribunal said at page 99 of the Court Book that it found the Applicant to be a generally credible, articulate and forthcoming witness. The Tribunal did not, unfortunately for the Applicant, share all of his interpretation of his past experiences or of country information and was not satisfied that he had a well-founded fear of persecution.

  3. The Tribunal then set out on pages 99 through to 102 the reasons why the Tribunal did not accept the Applicant's evidence amounted to sufficient for it to be satisfied that the Applicant had a well-founded fear of persecution for Convention reasons. The Tribunal noted that the Applicant's wife was in fact a Muslim Indonesian and in fact asked the Applicant about whether his marriage to someone of another faith was relevant to his refugee claims and noted this reply:

    The applicant said it was not initially but things became less peaceful later on.  The Tribunal understood this to be a reference to the applicant's main claim concerning the problems for Chinese generally and not an implied claim arising from the inter‑faith marriage or any related factors.

  4. The Tribunal ultimately was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and affirmed the decision not to grant the Applicant a Protection (Class XA) visa. 

The application for judicial review

  1. The Applicant has sought judicial review of that decision and has filed an amended application prepared for him by a solicitor.  The grounds of the application are set out in some detail but on my reading of the amended application the grounds also include submissions in support of the grounds.

  2. In my view, the first ground is set out in the first paragraph of section 1 which says as follows:

    The Tribunal acted in breach of section 424A of the Migration Act 1958 and in breach of the rules of procedural fairness and/or natural justice by failing to put to the Applicant for comment the independent country information on which it actually relied in making its determination and which was potentially adverse to the Applicant. As a consequence the decision is affected by jurisdictional error and it must be set aside.

  3. There follows four paragraphs which I take to be particulars of that claim.  The second ground appears on the second page. In my view, the first paragraph sets out the ground and the subsequent and significantly longer paragraph, sets out particulars of that ground.  I take the ground to be this:

    The Tribunal accepts that the Applicant is of Chinese ethnicity and Christian by religion (at paragraph 1 page 99 of the Green Book), as claimed in his Application for a Protection Visa and consistently thereafter. In reaching its decision the Tribunal relied on independent information not only about the situation for ethnic Chinese in Indonesia, but about the situation for Christians and Chinese Christians (as set out at pages 97- 98 of the Green Book).  Despite its finding of fact that the Applicant is a Christian and despite its reference to, and reliance on, this specific independent information the Tribunal failed to consider properly and determine matters that are central to this application.

  4. There follows a longer paragraph which sets out the particulars of that ground. The Applicant has attended the hearing today and has elected not to make any further oral submission and relying on the amended application prepared for him by a solicitor. I have also had the opportunity of reading the written outline of submissions prepared on behalf of the Minister by Mr Lloyd of counsel.

  5. Turning to the Applicant's first ground which includes a claim of both a breach of the requirements of s.424A of the Migration Act and a breach of the rules of procedural fairness and/or natural justice. I note that the Applicant claims that the Tribunal failed to put to the Applicant the independent country information upon which it actually relied. The fact is that the Tribunal did put some independent country information to the Applicant as can be seen at page 100 of the Court Book. The Applicant submits that that is not sufficient, saying that the fact that the Tribunal set out information in some detail in its decision is not sufficient for the Tribunal to meet its obligations.

  6. It is also submitted that whilst material was discussed with the Applicant it was put to him selectively and only in summary form. The first point that should be made is that independent country information is excluded from the operation of s.424A by the provisions of


    sub-s.424A(3)(a) of the Migration Act, thus reliance on independent country information does not, unless it is specifically about the applicant, does not constitute a breach of s.424A. The independent country information related to the situation in Indonesia of ethnic Chinese and to my mind is well and truly covered by the exception in sub-s.424A(3)(a).

  7. In any event, as counsel for the Minister pointed out, this application is one to which s.422B of the Migration Act applies, thus the requirements of procedural fairness are exhaustively stated in Division 4 of Part 7 of the Migration Act. I note that the Applicant relies on the decisions of SZAGF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 82 ALD 364 and also on the decision in Re Minister for Immigration & Multicultural Affairs & Another; Ex parte Miah (2001) 206 CLR 57.

  8. Those cases relied on in support of the proposition that the existence of s.424A does not of itself preclude the continued existence of the common law requirements of natural justice. The answer to that of course is that s.422B does. Both SZAGF and also Ex parte Miah were matters where s.422B did not apply as the Tribunal decisions in those cases predated the starting date of s.422B. Accordingly, both SZAGF and also Miah's case can be distinguished.  I note that SZAGF was in fact a matter that was returned to the Tribunal and in 2005 I heard a further application for review in respect of that same Applicant.

  9. The other matter to which counsel for the Respondent Minister has drawn my attention is that both the delegate and the first Tribunal relied upon either the same country information or information to the same effect as that of the second Tribunal, thus it is submitted that the Applicant should have been aware that this was an issue that he needed to address. As I said, the Tribunal also raised country information with the Applicant, albeit in summary form. Counsel for the Respondent Minister submits that on the basis of these matters that it cannot be said that the Tribunal failed to provide a hearing that complied with s.425 of the Migration Act.

  10. In my view, with respect, that submission is correct. There is no breach of s.424A of the Migration Act. There is no procedural unfairness or denial of natural justice at common law, s.422B applies, and I am satisfied that the Applicant should have been aware of the independent country information which was being considered by the Tribunal. It follows that the first ground for review must fail.

  11. The second ground relates to a claim that the Tribunal failed to consider and determine whether the Applicant faced a real chance of persecution if he were to return to Indonesia on the basis that he is a Chinese Christian or that he is simply a Christian.  Counsel for the Respondent has submitted that the Tribunal considered all of the Applicant's claims. The Applicant made no claim on the basis of his religion but the Tribunal was satisfied that the country information relating to Chinese Christians was relevant to the Applicant's particular circumstances.  This is referred to at page 97 of the Court Book under the heading "External Information" where the Tribunal said:

    The Tribunal drew on the following information, mainly relating to the situation for ethnic Chinese in Indonesia and more specifically Jakarta.  A number of these reports refer to ‘Chinese Christians’, rather than Chinese generally. This arises in large part because many Chinese are Christians; in Jakarta, for instance, ethnic identity (Chinese/Indonesian) often overlaps with religious identity (Christian/Muslim).  It also reflects the focus of particular studies or authors. The Tribunal is satisfied that the reports below are relevant to the applicant's circumstances as a Chinese person in Jakarta, even where the actual reference is to Chinese Christians.

  12. In my view, the issue of the Applicant's religion and the issue of the Applicant's religion combined with his ethnicity were in fact considered by the Tribunal. The weight given to country information and its relevance are really a question for the Tribunal and not the Court.  Counsel for the Respondent refers me to the decision of SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478. The Tribunal considered the Applicant's claim as an ethnic Chinese and as a Chinese Christian and considered the cumulative effects. The Tribunal turned its mind to the question of the Applicant's inter-faith marriage to which the Tribunal referred and in fact asked the Applicant about.

  13. I am satisfied that the Tribunal has considered the Applicant's claims individually and cumulatively. I am satisfied that the Tribunal, in making its consideration, looked at, not only the claims made but other claims relating to religion and mixed religion which could have been made and which emerged from the evidence.  I am satisfied therefore that the Tribunal did not fall into jurisdictional error because the Tribunal did consider the Applicant's claims individually and cumulatively.

  14. I am aware of the fact that, whilst the Applicant has had legal assistance in preparing his amended application, he is not legally represented today. I have read through the Tribunal decision and supporting material in an effort to ascertain whether any other arguable case can be made for jurisdictional error. I am unable to discern any arguable jurisdictional error. In the absence of jurisdictional error it follows that the Tribunal decision is a privative clause decision as defined by sub‑s.474(2) of the Migration Act. A privative decision is not subject to orders in the nature of certiorari or mandamus and it must follow then that the application must be dismissed.

  15. I will also make an order changing the title of the First Respondent to Minister for Immigration and Citizenship. 

  16. There is an application for costs on behalf of the First Respondent Minister. The amount sought is $4,000.00. As the Minister has been successful this is a case where an order for costs can be made, whilst the amount of $4,000.00 is, in my view, within the scale provided in the Federal Magistrates Court Rules, the Applicant has submitted that it is too expensive. He is not in full time employment and would have difficulty meeting those costs. Certainly that is not a reason for not making an order for costs but it is a matter that I should take into account when allowing time to pay. I propose to allow six months to pay.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  4 July 2007

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