SZIMO v Minister for Immigration

[2006] FMCA 1902

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIMO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1902

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal complied with its statutory duty.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1); 424A(3)(a); 424A(3)(b); 474; pt.8 div.2

Applicant: SZIMO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG745 of 2006

Judgment of: Emmett FM

Hearing date: 4 December 2006

Date of last submission: 4 December 2006

Delivered at: Sydney

Delivered on: 4 December 2006

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Ms V. McWilliam

Solicitors for the Respondent: Ms Z. McDonald, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG745 of 2006

SZIMO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 January 2006 and handed down on 14 February 2006. 

2. The applicant was born on 17 September 1967 and claims to be from the People’s Republic of China (“the PRC”). 

3. The applicant has a wife and two sons who remain in the PRC. 

4. The applicant arrived in Australia on 18 September 2005, having legally departed from the PRC on a passport issued in his own name and a subclass 771 visa issued on 5 September 2005. 

5. On 19 September 2005, the applicant lodged an application for a protection (class XA) visa with the Department.  The applicant provided a statement in support of his protection visa application in which he stated that, in the course of doing business in Fu Qing, he met a Mr C, who was head of “Shouters” and who distributed Bibles and leaflets to secret gathering places in Fu Qing as well as leading members of “Shouters” in the Fu Qing area. 

6. The applicant stated that Mr C persuaded him to be a member of “Shouters”, but that the applicant was not interested at that point in time and told Mr C that he was busy with his business and could not afford the time of participating in the Shouter activities.  The applicant claimed that he continued to have a business relationship with Mr C.  The applicant stated that, in early 2005, Mr C asked him to keep some documents for him until his return.  The applicant claimed that police came to his home and took the documents, in April 2005, and that the police found that the documents were evidence of the applicant being involved with the Shouters, being an underground unregistered church. 

7. The applicant said that he sought to explain to the police that he was helping a friend, however, the police beat him and tortured him.  The applicant claimed that the police insisted he was head of the organisation and that Mr C paid a large sum secretly to obtain the applicant’s release.  The applicant claimed that he realised that, following this incident, his association with Mr C would result in more persecution and for that reason, he obtained a visa to come to Australia for protection. 

8. On 20 October 2005, a delegate of the first respondent (“the Delegate”) refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). 

9. On 14 November 2005, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.  The applicant provided no further material in support of his application, however, he attended a hearing before the Tribunal at which he repeated his claims. 

10. The applicant told the Tribunal that he was beaten by authorities and held in detention for two weeks between 11 and 26 April 2005 and that the authorities had not believed him when he told them he had no involvement with the Shouters or any other religious group.  The Tribunal explored with the applicant his relationship with Mr C and concluded that the applicant did not appear to know Mr C very well.  The Tribunal noted that it asked the applicant if he read the documents given to him by Mr C and noted his response that he did not. 

11. The Tribunal noted that it asked the applicant if he had any involvement with the Shouters in the PRC and noted the applicant’s response that he was invited to a meeting by Mr C, but he did not stay long because he was not interested in what they were doing.  The Tribunal noted that it asked the applicant if the applicant had any involvement in religion and noted the applicant’s response that he was not interested in religion or religious activities. 

12. The Tribunal noted that the applicant stated that he did not have difficulties with the authorities prior to his arrest in April 2005, that he had had no contact or difficulties with the authorities after his release on 26 April 2005 and that he had no contact with Mr C since arriving in Australia. 

13. The Tribunal noted that it discussed with the applicant a visit by the applicant to Chile, before coming to Australia, and that whether the applicant made any attempt to seek asylum in Chile.  The Tribunal noted the applicant’s response that he did not consider applying for asylum in Chile, although he was there from 1 to 15 August 2005.

14. The Tribunal had regard to independent country information that disclosed that Shouters were considered a cult by the PRC government and banned in the PRC.  However, reports indicated that it was only active religious activists who attracted the adverse interest of the authorities in the PRC.  The Tribunal noted that independent information did not support the applicant’s claim that persons such as himself, being a person not actively involved in religious activities, risked adverse interest from the authorities. 

15. The Tribunal noted that the applicant stated that the authorities in the PRC thought that the applicant would use Mr C’s documents to propagate religion. 

16. The Tribunal basically accepted the claims made by the applicant, including that he was detained and mistreated by the authorities in the PRC during 2005.  However, the Tribunal found that the applicant unwittingly became implicated in the activities of Mr C when he agreed to look after documents for him. 

17. The Tribunal found that the adverse attention of the authorities towards the applicant was confined to the two-week period whilst the applicant was in detention.  The Tribunal found that, on the applicant’s description of his circumstances in the PRC, the authorities had no further interest in the applicant after his release on 26 April 2005.  In reaching that conclusion, the Tribunal had regard to the fact that the authorities had not demonstrated an interest in the applicant after his release and had not sought to contact him before he left for Australia in September 2005. 

18. Whilst the Tribunal noted the applicant’s claim that Mr C had made payments to relevant persons to enable him to remain safely in the PRC, until he came to Australia, the Tribunal found that, if the authorities had any adverse interest in the applicant regarding his involvement in religious activities or for any other reason, they would have demonstrated their interest while he lived in the PRC.  The Tribunal concluded that the reason the PRC authorities did not demonstrate any interest in the applicant was because he was not a person of concern or interest to them after his release from detention on 26 April 2005. 

19. The Tribunal considered the applicant’s claim that he was identified as a leader of the Shouters and would be targeted by authorities in the future for this reason.  However, in considering independent information, the Tribunal concluded that the government in the PRC did not target citizens who participate in unregistered or banned religious groups.  Because the Tribunal was not satisfied that the applicant was a person involved in religious activity, it did not accept that he would be targeted by the authorities by reason of his religion.  The Tribunal found that only active members of the groups attract the adverse attention or interest of the authorities in the PRC. 

20. The Tribunal noted the applicant’s statement that he has no interest in religious activities.  The Tribunal was satisfied that the applicant was not involved or implicated in any activity which would attract the adverse interest of the PRC authorities in the reasonably foreseeable future.  The Tribunal concluded that the applicant did not have a well-founded fear of persecution in the PRC and was therefore not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. 

21. On 13 March 2006, the applicant filed an application in this Court seeking judicial review of that Tribunal decision.  On 4 July 2006, the applicant filed an amended application.  The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter.  The applicant confirmed that he relied upon the amended application, which disclosed one ground, in the following terms:

    “1. The Tribunal failed to carry out its statutory duty.

    (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 1958s. 424A. (sic) 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 (18 May 2001)…

    (d) The information to be given extends to that information given by the Applicant o (sic) the First Respondent as part of his application for a visa.

    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v AL SHAMRY (2002) 110 FCR 27 …

    (e) The Tribunal based it’s (sic) 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 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.”

22. The applicant did not make any meaningful submission in support of the grounds contained in his amended application this morning and was unable to identify any manner in which the Tribunal had failed to comply with its obligations under s.424A(1) of the Act. Certainly, the Tribunal complied with the statutory requirement to invite the applicant to attend a hearing, which it did by letter dated 1 December 2005 and, indeed, the applicant attended the hearing.

23. I note that the letter sent to the applicant on 1 December 2005, inviting the applicant to attend a hearing, informed the applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.  The letter invited the applicant to send any new documents or written arguments that he wished the Tribunal to consider, however, nothing further was received by or on behalf of the applicant. 

24. It is quite plain from the Tribunal decision that there was no information to which the Tribunal had regard in affirming the Delegate’s decision that was information that enlivened s.424A(1) of the Act. The Tribunal accepted the substance of the applicant’s claims. However, it was not satisfied, on the evidence and material before it, that the applicant was not involved or implicated in any activity which would attract the adverse interest of the PRC authorities in the reasonably foreseeable future. The information upon which the Tribunal relied in reaching that conclusion was based on information given by the applicant to the Tribunal for the purposes of its review. That information is expressly excluded from the obligation of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.

25. The Tribunal also had regard to independent information before it, in considering whether persons in the applicant’s circumstances attracted adverse attention or interest of the authorities where they were not actively involved in religious activities. That information is information specifically excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.

26. In the circumstances, the Tribunal has complied with its statutory duties in the conduct of its review. 

27. Before the Court this morning, the applicant contended that the Tribunal made its decision on suspicion and a guess.  The applicant provided no particulars of the allegation and I understand that complaint to be no more than a disagreement with the conclusions and findings of the Tribunal.  The Tribunal identified with particularity the applicant’s claims and evidence before it.  It then purported to evaluate that evidence and material, as it was obliged to do, and to come to findings and conclusions based on that evidence and material, which it was obliged to do. 

28. The applicant also complained that the Tribunal had assumed that the applicant was not a member of the Shouters group.  However, as is clear from the applicant’s written material and in his oral evidence to the Tribunal, he did not claim to be a member of the Shouters group.  The Tribunal noted that it asked the applicant if he had any involvement in religion, to which the applicant responded he was not interested in religion or religious activities and that he had told the authorities so when he was arrested.  In particular, he told the authorities he had no involvement with the Shouters or any other religious group.

29. The applicant also contended this morning that the Tribunal was biased, however, no particulars were provided and there was no evidence to support such a contention. 

30. Following submissions by counsel for the first respondent, the applicant, in reply, contended that the Tribunal had not considered that the authorities regarded the applicant as a person close to Mr C and of interest for that reason. 

31. It is clear from the Tribunal’s decision that it understood the applicant to claim a fear of persecution from the authorities because of his association with Mr C.  Indeed, the Tribunal accepted that the applicant was arrested and mistreated by the authorities for that reason.  However, the Tribunal found that, because the applicant is not a person who is otherwise involved in religious activities and was not a person who had attracted adverse attention, either before his arrest or after his arrest, it was satisfied that he was not involved or implicated in any activity that would attract the adverse interest of the authorities in the reasonably foreseeable future. 

32. The Tribunal had regard to the applicant’s claim that it was Mr C who bribed people to enable the applicant to remain safely in the PRC. However, the Tribunal found that, if the authorities had any interest in the applicant for any reason, they would have demonstrated their interest while he lived in the PRC.  The Tribunal found that the authorities did not demonstrate any interest in the applicant after his release because he was not a person of concern or interest to the authorities.  Those findings and conclusions were open to the Tribunal on the evidence and material before it and for which it provided reasons. 

33. In the circumstances, the decision of the Tribunal is not affected by jurisdictional error and is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere and the applicant’s proceeding before this Court is dismissed.

34. The first respondent seeks costs fixed in an amount of $3800.  I note that such sum is less than the amount provided for under para.1(c) of pt.2 of sch.1 to the Federal Magistrates Court Rules 2001. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  20 December 2006