SZINB v Minister for Immigration
[2006] FMCA 1044
•27 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZINB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1044 |
| MIGRATION – Review of decision by Refugee Review Tribunal – alleged breach of s.424A(1) – alleged bias – alleged insufficient opportunity provided by Tribunal to respond to “substance of the information”. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422B; 424A; 424A(1); 424A(3)(a); 425; 430; 474; div.2 pt.8; div.4 pt.7 |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27 |
| Applicant: | SZINB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG788 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 July 2006 |
| Date of last submission: | 20 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2006 |
REPRESENTATION
| Applicant appearing on own behalf |
| Counsel for the Respondent: | Mr J. D Smith |
| Solicitors for the Respondent: | Ms H Blackman, Blake Dawson Waldron |
ORDERS
That the name of the First Respondent be amended from “Minister for Immigration and Multicultural and Indigenous Affairs” to “Minister for Immigration and Multicultural Affairs.”
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $4000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG788 of 2006
| SZINB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and div.2 pt.8 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 January 2006. The Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 22 October 2005. The application for a protection visa was refused on the basis that the applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The applicant is a 41 year old male who claims to be a citizen of the People’s Republic of China (“PRC”) and of Chinese ethnicity and Christian faith (“the Applicant”). The Applicant was born in the PRC but has lived in Hong Kong since 1986.
The Applicant has a wife, 16 year old son and 13 year old daughter who continue to reside in Hong Kong.
The Applicant arrived in Australia on 14 August 2005, having legally departed from Hong Kong on a passport issued in his own name and a subclass UD-976 Electronic Travel Authority visa issued on 9 August 2005.
On 21 September 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the Chinese authorities due to his involvement in helping his friend deliver bibles from Hong Kong to Fu Qing for a group called the ‘Shouters.’ Before the Tribunal, the Applicant also claimed he and his family were Christians and that documents, associated with his father building a Christian church in his village in the PRC, were stolen from his car and his home in Hong Kong.
On 22 October 2005, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 23 November 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 31 January 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 17 March 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The tribunal proceeding
The Applicant gave oral evidence to the Tribunal at a hearing.
The Tribunal accepted that the Applicant is a citizen of the Hong Kong Special Administrative Region of the PRC.
The Tribunal noted that the Applicant expanded his story during the hearing. The Tribunal noted that the Applicant repeated orally his written claims made in support of his protection visa application referring to his smuggling of bibles into the PRC to give to the ‘Shouters’. The Applicant claimed that following the arrest of one of the ‘Shouters’ he was questioned by the Public Security Bureau (“the PSB”) in the PRC and monitored in Hong Kong. The Applicant claimed that the PSB stole documents from his car and his house in Hong Kong. The Tribunal noted that the Applicant expanded his claims during the hearing to include information that his father was sending money to build a church in his village in the PRC and that the documents stolen from the Applicant in Hong Kong related to matters about the church construction in the PRC. The Tribunal noted that the Applicant’s fears were that ‘Shouters’ arrested in the PRC would tell the PSB in the PRC that the Applicant had been supplying bibles to them by smuggling them from Hong Kong to the PRC.
The Tribunal accepted that from time to time the Applicant carried bibles from Hong Kong into the PRC. However the Tribunal found that the number of bibles that he carried was small enough as to fit into his own luggage and was not noticed by the authorities in the PRC.
While the Tribunal accepted that the Applicant and his family are Christians, it noted that their religion had never brought any of them to the adverse attention of the authorities in the PRC.
The Tribunal accepted that the Applicant stayed with a ‘Shouter’ friend in the PRC who was arrested by the PSB, resulting in the Applicant’s detention by the PSB. However, the Applicant was released because he was of no further interest to the authorities in the PRC. The Tribunal accepted that the Applicant returned to Hong Kong the day after his release and noted that no attention was paid to the Applicant or his luggage at the border.
The Tribunal accepted that two days after his return to Hong Kong, documents were stolen from the Applicant’s car. The Tribunal noted that the Applicant claimed that he reported this incident to police. The Tribunal noted that the Applicant had difficulty describing the documents other than that they related to the construction of a church in the PRC.
The Tribunal noted that the Applicant also claimed that his home in Hong Kong was broken into and a folder of documents was taken. The Tribunal noted that the Applicant had difficulty describing the contents of the folder, as he had with the documents stolen from his car, but that “he eventually suggested that they were references to those who had donated to the church building project.” The Tribunal noted that details about this church were extremely hard to elicit from the applicant. The Tribunal noted that at one stage the Applicant said that his father “built” a church and at another said that the church was “under construction”. The Tribunal noted that the Applicant at one stage talked about it being two storeys, however, when pressed he stated that the foundations had been laid and the walls were going up.
The Tribunal rejected the Applicant’s claims that he was being monitored and subject to adverse attention by the PRC authorities in Hong Kong. The Tribunal noted that the Applicant made no claims that he was concerned about persecution from the local authorities in Hong Kong, nor that his freedom of religion in Hong Kong was in any way curtailed. The Tribunal found that the Applicant’s fears about being charged in regard to smuggling bibles into the PRC was “fairly ill-defined”.
The Tribunal found that in accordance with independent information, the Chinese authorities have no power to harm the Applicant in Hong Kong and that there was no evidence at all that the Chinese authorities had any adverse interest in the Applicant.
The Tribunal found that he could choose to go or not to go to the PRC. The Tribunal noted that the Applicant is entitled to permanently reside in Hong Kong and that he has not suffered harm for a Convention reason in Hong Kong in the past. The Tribunal found that the chance that any harm would befall the Applicant in the reasonably foreseeable future in Hong Kong is remote.
Accordingly, the Tribunal was not satisfied that the Applicant has a well founded fear of persecution for a Convention reason and was therefore not a person to whom Australia has protection obligations under the Convention.
The proceeding before this court
The Applicant was unrepresented at the hearing before this Court although had the assistance of an interpreter. The Applicant had also participated in the panel advice scheme.
The Applicant filed an application in this Court on the 17 March 2006 and an amended application (“the Amended Application”) on 27 June 2006.
The Amended Application relied on the following grounds.
Ground 1 – “The Tribunal failed to carry out its statutory duty”
By a series of particulars, including quotes from SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27, the Applicant appeared to be contending that the Tribunal had not complied with its obligations pursuant to s.424A of the Act.
Although the Tribunal mentioned that the Applicant had expanded on his story during the hearing before it, the Tribunal did not make any adverse finding in respect of the Applicant arising out of the fact that the Applicant had expanded upon his claims. Indeed, the Tribunal accepted a number of the Applicants’ claims including that he was a Christian and that his father had some involvement with the building of a church and that the Applicant had transported bibles to the PRC from Hong Kong for a Christian Shouter friend. However, the Tribunal was not ultimately satisfied that the Applicant met the criteria required refugee status in accordance with s.36 and s.65 of the Act.
The Tribunal found that the PSB was not able to supervise Hong Kong citizens or break into their homes in Hong Kong. The Tribunal found that there was a “formal and properly observed relationship” between the Hong Kong police force and the PSB and that if it were breached, a Hong Kong citizen could complain to the Independent Police Complaints Council which the Tribunal found, in accordance with independent information, to be an effective body. Such information is exempted pursuant to s.424A(3)(a) of the Act from the requirements of s.424A(1) of the Act.
Otherwise, as stated above, there was no information contained in the primary documents that was the reason or part of the reason for the Tribunal affirming the decision of the review.
For those reasons, there is no breach of s.424A.
The hearing took place under the regime provided for in Division 4 Part 7 of the Act. Section 422B of the Act provides that Division 4 Part 7 is an exhaustive statement of the rules of natural justice as they apply to the Tribunal’s review procedure. The Tribunal invited the Applicant to attend the hearing, in accordance with s.425 of the Act.
In accordance with its obligations pursuant to s.430 of the Act, the Tribunal considered the Applicant’s claims, made findings and reached conclusions on those findings. The findings and conclusion made by the Tribunal were open on the evidence before it.
The Tribunal otherwise complied with its statutory obligations in respect of the conduct of its review and its decision.
Accordingly, ground 1 is not made out.
Ground 2 – “The Tribunal had bias against me when considering my application for a protection visa the Tribunal did not believe my claims and refused my application without sufficient evidence and materials”
The Applicant stated at the hearing before this Court that the Tribunal did not provide him with copies of the hearing tapes, although he acknowledged that he did not ask for any. Other than that statement, there are no particulars in respect of this ground.
In reaching its conclusions, the Tribunal decided that it had regard to the claims made by the Applicant and to independent information. The Applicant expanded on his claims at the Tribunal hearing. The Applicant’s expanded on his claims were considered by the Tribunal without any adverse finding resulting from the expansion of the claims.
There is no evidence that the Tribunal conducted its review other than in a fair and reasonable manner. There is nothing to suggest that the Tribunal was either prejudiced in its decision or that it gave the appearance that it could not or would not change its mind.
In the circumstances, there is no evidence of actual bias or of any reasonable apprehension of bias.
Accordingly, this ground is not made out.
Ground 3 – “The Tribunal did not provide me an adequate opportunity to respond the substance of the information”
The Applicant made no submission in respect of this ground.
The First Respondent submitted that, in the context of previous grounds, it understood this ground to be a reference to the first ground and supplementary to it.
The First Respondent submitted that if the claim was alleging a breach of natural justice at common law, then the proceedings were regulated by Division 4 Part 7. I have, earlier in these reasons, found that the Tribunal conducted its review in accordance with Division 4 Part 7 of the Act.
As stated above the Applicant gave evidence before the Tribunal and expanded on written claims. The Tribunal noted, with particularity, the matters of concern it put to the Applicant and noted the Applicant’s responses.
There is nothing on the face of the decision to indicate that the Tribunal did not provide the Applicant with an adequate opportunity to respond to concerns raised by the Tribunal. The Applicant did not tender any evidence at the hearing before this Court, although it was directed on the 13 April 2006 to file and serve any such additional evidence by
7 July 2006, including a copy of the transcript.
There is no evidence before me, other than the Applicant’s bare assertion of this ground, of any conduct of the Tribunal that would allow the reasonable conclusion that the Applicant had been denied an adequate opportunity to respond to concerns raised by the Tribunal.
If the words, “substance of the information” in this ground, are intended to refer to independent country information, then s.424A(3)(a) of the Act excludes this information from the Tribunal’s obligations under s.424A(1) of the Act.
Accordingly, this ground does not disclose an error capable of proper review and is rejected.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S.Kwong
Date: 27 July 2006
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