SZIOL v Minister for Immigration

Case •

[2006] FMCA 787

•

30 May 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIOL v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 787
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 – no reviewable error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.474

Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Applicant: SZIOL
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 912 of 2006
Judgment of: Scarlett FM
Hearing date: 30 May 2006
Delivered at: Sydney
Delivered on: 30 May 2006

REPRESENTATION

The Applicant: In Person
Solicitor for the Respondent: Ms McDonald
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,370.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 912 of 2006

SZIOL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application to review a decision of the Refugee Review Tribunal. The decision was made on 14th February 2006 and handed down on the 7th March 2006.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection Visa.

Background

  1. The Applicant is a citizen of the People's Republic of China. He arrived in Australia on the 16th August 2005 and on the 13th September lodged an application for a Protection (Class XA) Visa. That application was refused on 12th December in that same year. 

  2. On 4th January 2006 the Applicant sought a review of that decision from the Refugee Review Tribunal. He did not file any additional information with his application for review.  The Tribunal wrote to the Applicant on the 10th January inviting him to attend a hearing on Tuesday 14th February 2006.  The Applicant attended the hearing and gave oral evidence with the assistance of an interpreter in the Mandarin language. He did not produce a passport but produced a New South Wales Learner Driver Licence and the Tribunal accepted that he was a citizen of the People's Republic of China and assessed his claim against that country.

  3. The Applicant claimed a well-founded fear of persecution on the basis of his religious beliefs.  He said that he is a Christian and belongs to a particular Christian sect called the Shouters. The Tribunal asked him about the practice of his religion at the hearing.

The tribunal’s findings and reasons

  1. The Tribunal's findings and reasons are set out at pages 73 and 74 of the Court Book. It is noteworthy that on page 73, the Tribunal did not find the Applicant to be a credible witness on key aspects of his claims.  In particular; the Applicant was unable to provide to the Tribunal relevant detail about the practices or the beliefs of the Shouters.

  2. The Tribunal stated that the Tribunal Member put to the Applicant on several occasions at the hearing that the paucity of his evidence in respect to his knowledge and practice of the Shouters meant that the Tribunal was not convinced that he was a Shouter and had faced harm or would face harm as a Shouter. The Applicant offered explanations for his inability to provide relevant details, claiming, in particular, that he was depressed and not in a fit mental state as a result of an interrogation by the authorities in China the previous year.

  3. The Tribunal did not accept that explanation and did not accept that a depressed mental state would account for the Applicant's inability to explain at least some details of the practice of his claimed religion.  Because the Tribunal did not accept that the Applicant was a Shouter, the Tribunal did not accept that he had faced harm in the past or would face harm in the reasonably foreseeable future if he were to return to China. Accordingly, the Tribunal affirmed the delegate's decision not to grant a Protection Visa.

The application for judicial review

  1. The Applicant sought judicial review of that decision by filing an application and an affidavit in support on the 28th March 2006.  The application was originally listed for Final Hearing on the 10th May but was adjourned to the 15th May so the Applicant could obtain legal advice. On the 15th May the application - again at the request of the Applicant - was adjourned until today's date and I made directions to deal with the situation if the Applicant wished to file an Amended Application.  The Applicant did not file an Amended Application.

  2. In dealing with the application that is before the Court; I note that the Applicant claims that the Tribunal failed to comply with its obligations pursuant to the Migration Act and denied the Applicant procedural fairness. The Applicant gives three sets of particulars to that claim. I will quote those in full:

    a)     The Tribunal did not find the Applicant to be a credible witness because the Applicant did not impress the Tribunal.  This indicates that the Tribunal used its personal judgment in reviewing the refusal application.

    b)     The Tribunal did not accept the Applicant's explanation that there were difficulties in gathering evidence in relation of his claim, especially the fact that the Applicant was depressed and in an unfit mental state after experiencing persecution by Chinese authorities.

    c)   The Tribunal did not give consideration on the relevant country information about China that the Christian/Shouters are being persecuted in China. 

  3. The Applicant's affidavit was admitted without objection and it largely consists of a short history and as Ms McDonald for the Respondent Minister submits, contains a reiteration of the Applicant's claim for a Protection visa. 

  4. The Applicant told the Court that he had been spiritually and mentally depressed at the Tribunal hearing and the Tribunal had not believed what he told the Tribunal. He complained that the Tribunal had not let him put in further information, although he said he had asked this at the hearing. There was no reference to that in the Tribunal decision and there is no transcript of the reasons. 

  5. The Applicant complained that he had actually showed the Tribunal the disability to his hand and the Tribunal still did not believe his basis of claim. 

  6. For the Respondent; it was submitted that the Tribunal simply was not satisfied about the Applicant's evidence, using his lack of knowledge of the practice and belief of the Shouters. The Tribunal had invited the Applicant to make further comments and I was referred to page 71 of the Court Book that the Tribunal had informed the Applicant that if he did not provide further information he was at some risk of his claim not being settled. 

  7. The Tribunal did recognise the Applicant's claim about his depressed mental state and gave that consideration but did not accept the Applicant's claimed mental inability as a reason for not providing details of his practice and beliefs. 

  8. For the Respondent; it was submitted that the application merely purports to seek a merits review. 

  9. In my view there is nothing that would indicate that the Applicant was denied procedural fairness. The Applicant was invited to attend the hearing and give evidence and make submissions on his own behalf.  He attended the hearing and he did give evidence. There is no proof, other than the Applicant's bald assertion, that he wished to submit further evidence, and in any event I am not satisfied that any reason has been shown why he should have been permitted to submit further evidence.

  10. I am aware that under s.422B of the Migration Act the Tribunal's obligations to procedural fairness are set out in division four of part seven of the Act and that there is no scope therefore to apply the provisions of what would otherwise be common law procedural fairness. In my view the recent decision of the Full Court of the Federal Court in Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61 supports that view.

  11. In any event, the decision record shows that the Tribunal Member told the Applicant at the hearing that she did not consider the information he was giving to be sufficient and warned him of the consequence of providing inadequate information. In my view the Tribunal has complied with the requirements of common law procedural fairness whether required to or not.  It is trite law that even where an application seeks merits review that the Court does not have jurisdiction to undertake that task.  Factual decisions are matters for the decision maker. The Court conducting judicial review does not undertake a merits review. 

  12. The Tribunal's finding adverse to the Applicant's credibility, which was the major part of its decision, was open to the Tribunal. I refer to the well-known decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

  13. A credibility finding is a factual finding and it is a decision for the decision maker. The Applicant's claim that the Tribunal relied on personal judgment does not provide a ground for jurisdictional error because the assessment of credibility on the evidence is a matter where a Tribunal Member who hears that evidence does exercise a personal judgment. The Court will not therefore interfere. 

  14. The Tribunal's lack of satisfaction with the Applicant's evidence about practices and beliefs of the Shouters and the Tribunal's lack of satisfaction with his explanation that he was depressed and in an unfit mental state are both matters of fact that the Tribunal was entitled to make. The Applicant told this Court that he did not consult a doctor and he certainly did not submit any medical evidence to the Tribunal. 

  15. As to the claim that the Tribunal did not consider country information; the fact is that the basis of the Applicant's claim, namely that he was a member of the Shouters, was just not accepted by the Tribunal. If the Tribunal did not accept the basic proposition that the Applicant was a Shouter, there was no need to peruse any country information. I adopt as a summary the first three sentences of paragraph 18 of the Respondent's written submissions which appear to me to describe accurately the appropriate conclusions that this Court should draw.

    The RRT's task as an inquisitorial review body was to ask questions, weigh evidence and make findings of fact. It did exactly this and its decision turns on findings of adverse credibility.  These were findings of fact that were open on the evidence. 

  16. The Applicant has not shown that there is any jurisdictional error. My independent reading and assessment of the decision does not indicate any other jurisdictional error not referred to by the Applicant. As there is no reviewable error, I am satisfied that the decision is a privative clause decision under provisions of s.474 of the Migration Act. Accordingly, no order in the nature of certiorari or mandamus will lie. The application must be dismissed.

  17. There is an application for costs fixed in the amount of $3,370.00.  It appears to me to be appropriate that I should make a costs order in favour of the Respondent.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  31 May 2006

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