SZIPJ v Minister for Immigration - [2006] FMCA 1449

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIPJ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1449

MIGRATION – Refugee – credibility findings – findings of fact are a matter for the Tribunal – impermissible merits review – application dismissed.

Migration Act 1958, ss.424A, 424A(1), 424A(2), 424A(3)(a), 424A(3)(b), 425, 441A, 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

Applicant:

SZIPJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 977 of 2006

Judgment of:

Nicholls FM

Hearing date:

26 September 2006

Date of Last Submission:

26 September 2006

Delivered at:

Sydney

Delivered on:

6 October 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms. A. Nesbitt (21 July 2006)
Ms. V. McWilliam (26 September 2006)

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The name of the first respondent be amended to read “Minister for Immigration & Multicultural Affairs”.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 977 of 2006

SZIPJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

I have before me an application filed on 31 March 2006 for an order that the respondent show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (“the Act”) in respect of the decision of the Refugee Review Tribunal (“the Tribunal”) made, and notified to the applicant, on

21 February 2006, to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

The matter was set down for final hearing before me by a Registrar of the Court on 18 April 2006.
The applicant is a citizen of The People’s Republic of China who arrived in Australia on 12 January 2000. On 19 December 2005 he lodged an application for a protection visa with the first respondent’s Department and on 22 December 2005 a delegate of the respondent Minister refused his application. The applicant applied for review of the delegate’s decision on 3 January 2006.
The applicant’s claims before the Tribunal were that he feared persecution from the authorities in China because of his imputed political profile, as a supporter of Falun Gong practitioners. He claimed that he opened a restaurant in which he allowed Falun Gong practitioners to do “exercises”. He claimed that on 26 July 1999 he was arrested and was questioned, tortured, beaten unconscious, and sustained a broken leg, a cut shoulder, internal and external bleeding, and was treated at hospital for 22 days. He claimed that he was continually monitored by the Public Security Bureau (PSB) who came to his home and interrogated him until he decided to leave China.

He also claimed that he is a Roman Catholic Christian and feared he would not be able to practice his religion in China. Further, the applicant claimed that he feared harm because he applied for asylum in Australia.
The applicant’s claims are set out in his application for a protection visa reproduced at Court Book (“CB”) 2 to CB 32 (and particularly in a statutory declaration reproduced at CB 33 to CB 36), in his application for review to the Tribunal (CB 50 to CB 53), in a letter to the Tribunal from the applicant’s then solicitor and migration agent (dated

23 January 2006 and reproduced at CB 60 to CB 77) with attachments (being printouts downloaded from the internet of “BBC News” items relating to the treatment of Christians in China, see CB 79 to CB 83)). Further, in the Tribunal’s account of what occurred at a hearing before it on 2 February 2006 (CB 104.6 to CB 106.8). The Tribunal also sent a letter to the applicant on 6 February 2006 pursuant to s.424A of the Act (CB 86). The applicant’s response, through his then legal and migration adviser, dated 9 February 2006, is at CB 90 to CB 91. A further letter from the applicant (handwritten in English) is reproduced at CB 92 to CB 94.
The Tribunal’s “Findings and Reasons” are set out at CB 109.3 to CB 113.8. The Tribunal found:
1)It was unable to accept any of the applicant’s claims (CB 110.5).
2)It did not accept the applicant’s reasons regarding the delay in lodging his application for a protection visa (the applicant arrived in Australia on 12 January 2000 and made an application for a protection visa on 19 December 2005) as it found that if the applicant was in fear of persecution, and in fear of the regime in China, he would have done so as soon as possible after his arrival in Australia on 12 January 2000 (CB 110.7).
3)That being apprehended by the Department of Immigration and placed in (immigration) detention motivated the applicant to apply for a protection visa as a means of remaining in Australia, rather than because he feared persecution (CB 110.9 to CB 111.1).
4)As a result of the applicant’s delay in making his application (five years), it concluded that he did not have a subjective fear of persecution in China (CB 111.2).
5)The applicant’s evidence at the hearing as to why he returned to China (from 15 May 2000 to 28 May 2000) to be inconsistent. The Tribunal did not accept further claims by the applicant as reasons for his return to China, provided in a letter subsequent to the hearing, and found them to be “manufactured” by him (CB 111.4).
6)That the applicant’s voluntary return to China in May 2000 indicated that he did not have any fear of persecution (CB 111.5).
7)That the applicant’s “story” that he wore a disguise and yet carried his passport with him when he returned to China, was “unsupportable” because he was wanted by the authorities in China (CB 112).
8)That the applicant was not a credible witness, that he manufactured all of his claims and that he is not a Roman Catholic (CB 112.7 to CB 112.9).
9)That there was no evidence provided by the applicant to support his claim that he was known to the Chinese authorities in Australia (CB 113.3).
10)In all the circumstances, that the applicant did not face a real chance of persecution if he returned to China now, or in the foreseeable future, and hence was not satisfied that he had a well founded fear of persecution for a Convention reason (CB 113.5 to CB 113.7).
The applicant’s originating application to this Court sets out the following grounds of review:
“1.The honourable member of TRIBUNAL failed to find Error of Law Jurisdictional Error and procedural fairness and relief under section 39B of Judiciary Act 1903. The honourable member did not take into account that the application has well founded fear of persecution on Conventional Reasons.
2.The decision made by the Refugee Review Tribunal should be kept aside.
3.I am a citizen of China who claims to have a well-founded fear of persecution for reasons under Refugee Convention as amended by Refugee Protocol.”
I note that in addition to the grounds raised in his application the applicant also makes a further complaint in a supporting affidavit filed on 31 March 2006:
“I am a Catholic Christian I fear that I will not be able to freely practice my religion.”
I also have before me the respondent’s written submissions and a response that relies on the following:
“1.The application does not establish any jurisdictional error in the decision of the Refugee Review Tribunal dated 21 February 2006.
2.The application for review does not raise an arguable case for the relief claimed pursuant to Part 44.12 of the Federal Magistrates Court Rules and accordingly the application should be dismissed.”
At the hearing before me on 21 July 2006 the applicant appeared unrepresented with the assistance of an interpreter in the Mandarin language. Ms. Nesbitt appeared for the respondents. The applicant stated that before making his application for a protection visa he had been provided with a lawyer who had prepared the application to the first respondent’s Department and subsequently the Tribunal.

He claimed that this lawyer had been appointed by the Minister (at first he confused this with the Tribunal). His complaint was that this lawyer had put forward certain claims (for example, as to when he first became a Catholic) which were not true and which ultimately led the Tribunal to regard him as “lying”. He claimed to have been “misled” by this lawyer.
Further, it would appear (see Supplementary Court Book (“SCB”) 1 to SCB 6) that the applicant was referred to a lawyer by the Minister’s Department for the purpose of obtaining assistance so as to lodge a protection visa application. While not wanting to be critical of this scheme, I was concerned with the applicant’s complaint that he had been “misled” by this lawyer (both before the Minister’s Department and the Tribunal) and that this lawyer had been “appointed” by the Minister, and presumably paid by the Minister.
The applicant also claimed that in relation to his application to the Court he had been referred to a lawyer on the panel of the Court’s Legal Advice Scheme, but that he had been told by this lawyer not to “bring anything” to the hearing before the Court. It was not clear as to what complaint (if any) the applicant was making about the panel lawyer. But I understood that at least he was seeking to explain why he had come to Court unprepared for the hearing, notwithstanding that he had appeared at the first Court date in this matter on 18 April 2006 with the assistance of an interpreter in the Mandarin language (where the matter had been set down for final hearing on 20 July 2006, although subsequently changed to 21 July 2006).
In any event, I was concerned that the applicant be given an opportunity to explore with a panel lawyer whether a ground of complaint about the Tribunal’s decision could be established. I was also concerned that the applicant be given an opportunity to obtain legal advice so that any complaint could be presented in the proper evidentiary context. This was also with reference to the applicant’s complaint in his “affidavit” filed on 31 March 2006, that he wanted time to consult a lawyer. I adjourned the hearing until 26 September 2006 and gave directions that the applicant be referred to another lawyer on the panel of the Court’s Legal Advice Scheme, and gave leave for the applicant to file and serve any amended application and evidence in support of any ground that he wanted to put forward. Leave was also granted for the respondent to file and serve any submissions in response. I made it clear to the parties that the Court’s concern was not, on what was then before it, that a ground of review could be discerned, but that the applicant be given a proper opportunity to explore his complaint to see if a ground of review existed.
On 26 September 2006 the applicant appeared unrepresented with the assistance of an interpreter in the Mandarin language. Ms. McWilliam appeared for the respondents. The applicant confirmed that he had now received advice from another lawyer on the panel of the Court’s Legal Advice Scheme. I note that the Court’s file contains a confirmation of advice given to the applicant on 11 and 21 August 2006.
Ms. McWilliam brought to my attention a document that the applicant had sent to the respondent. The applicant confirmed that had not filed this document at the Court’s Registry prior to the hearing, but sought to file this document in Court today. I accepted the document by way of written submissions from the applicant. No amended application or evidence (other than the affidavit filed with the originating application to the Court on 31 March 2006) has been filed by the applicant.
The applicant, in oral submissions, made the following complaints:
1)
That he has “enough reason to prove that if I go back to China

I will be persecuted”.
2)In relation to the Tribunal’s finding that the applicant was not a Roman Catholic, that “I am in this church now”.
3)That the “appointed solicitor by Tribunal, by the Court does not help me as he should”.
4)That he developed a “skin problem” whilst held in detention which “should be cured” and that he intended to seek “compensation for that because this problem is very serious”.
In this regard I explained to the applicant that the task for the Court today was to look at matters relevant to his application for review of the Tribunal’s decision. I explained to the applicant the difference between the role of the Tribunal and the role of the Court, and that the Court was concerned with whether particular legal error could be discerned in the Tribunal's decision. I further reminded the applicant that the question that the Tribunal, in effect, had to answer was whether he met the definition of refugee as set out in Article 1A(2) of the Refugees Convention. That if the Tribunal can be satisfied that an applicant has met that definition then it must grant a protection visa (pursuant to ss.65 and 36(2) of the Act). The question of whether an applicant has a well founded fear of persecution is a question for the Tribunal, and not for the Court.
The respondent submitted that the application to the Court does not particularise any grounds of review and effectively seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”). The respondent submitted that the Tribunal undertook an extensive analysis of the applicant’s claims and was not relevantly satisfied based on those claims and on its assessment of the applicant’s credibility.

The respondent also submitted that the applicant was provided with an opportunity to comment on the concerns that the Tribunal had with his evidence, both at the hearing before it, and through the “s.424A letter” dated 6 February 2006 (CB 86). The respondent submitted that the “s.424A letter” was correctly addressed, in compliance with s.441A of the Act, and sent to the applicant and his then representative. Further, the respondent submitted that the Tribunal clearly considered the applicant’s responses to the s.424 letter, and was not persuaded that the applicant’s claims were true. Finally the respondent argued that, in any event, factual findings regarding credibility are matters for the Tribunal “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1). I agree with this submission. The applicant’s grounds as stated do not go beyond seeking impermissible merits review and do not reveal jurisdictional error in the Tribunal’s decision.
Ground one, at best, may be seen as a claimed failure by the Tribunal to find “jurisdictional error” in the delegate’s decision. This does not reveal any such error in the Tribunal’s decision. Nor does the applicant say what jurisdictional errors, or “failure” in procedural fairness, the Tribunal failed to find in the delegate’s decision. The Tribunal’s role, of course, is to conduct “de novo” merits review of the applicant’s claims. On what is before the Court the Tribunal clearly fulfilled its statutory duty in conducting such a review. Ground two is a statement that the Tribunal decision be set aside and does not assert any error. Ground three is an assertion that the applicant has a well founded fear of persecution and taken with the assertion in the “affidavit” of 31 March 2006 that he is a Catholic Christian. This also seeks impermissible merits review.
The applicant’s written submissions raise the following complaints:
1)That the Tribunal “thought” that he was “lying” in relation to the reason why he “went back to my country”. The reason for this was:
a)His solicitor did not discuss this with him, and was “misleading the information”.
b)A problem with the interpreter who assisted with the preparation of the application.
2)That his “free solicitor” sent information to the Tribunal that said he was a Catholic. This was not the case. He now submits a baptism certificate with his submissions which reveals that he was baptised in May 2006 (and as such only became a Catholic at that stage). The complaint is that his free solicitor’s behaviour was “harmful” to him and that he did not take “responsibility” for his case.
3)That he did try to apply “for refugee” when he arrived in Australia in January 2000 but was “cheated” by migration agents.
4)That he feared he would be seriously harmed if he returned to China now because he previously “hid up Fa Lun criminals”.
The solicitor of whom the applicant now complains is Mr. Varess of “Craddock Murray Newman Lawyers” (see SCB 5). Despite opportunity to do so, and following a specific (and second) referral to a lawyer on the panel of the Court’s Legal Advice Scheme, the applicant has put no evidence whatsoever before the Court to support his very serious allegation. The referral to the “second” panel lawyer was, amongst other thing, for the specific purpose (a transcript of the hearing before the Court on 21 July 2006 was provided to the panel lawyer) of discerning whether a ground of review could be derived from this complaint and to provide any evidence in support. Despite opportunity the applicant has not provided any evidence, but merely repeats his complaint. In all, even if a ground of review could arise from these circumstances (and I note relevantly that what has been alleged does not, for example, rise to an assertion of fraud), then the lack of any evidence means that this complaint now does not assist the applicant in showing jurisdictional error on the part of the Tribunal.
Further, the specific complaint that he was not a Catholic while he was before the Tribunal and that the solicitor appointed to assist him “misled” him and the Tribunal, as Ms. McWilliam submitted, was contradicted by what the applicant himself told the Tribunal at the hearing it conducted with him (CB 104.9).
“He confirmed that he would be persecuted because of his association with Falun Gong members, and because he was Roman Catholic. He stated that he was not a Falun Gong practitioner.”
The Tribunal’s account is unchallenged by any other evidence before the Court. Further, Ms. McWilliam also referred to the applicant’s statutory declaration at paragraph 31 (CB 35) where he stated:
“I am a Catholic. I have heard that since I left China the authorities have cracked down on Catholics also. I fear that I will not be able to freely practice my religion.”
The applicant subsequently told the Tribunal:
“The applicant stated that the information in the Application for a Protection Visa (‘B’ & ‘C’) and his Statutory Declaration were read back to him in Mandarin before he signed the documents. The information contained in those documents is correct, and are still his claims. There was nothing that had been left out which he wished to claim at the hearing.” (CB 104.7)
In any event, Ms. McWilliam submitted that these complaints do not go the reason why the Tribunal member affirmed the decision.

Ms. McWilliam referred the Court to the key findings made by the Tribunal which she submitted were open to it, and not affected by any jurisdictional error. There were that:
1)The applicant did not have a subjective fear of persecution as he waited for five years after arriving in Australia to make a protection visa application (CB 111).
2)His voluntary return to China in May 2000 indicated he did not have a fear of persecution (CB 111.6).
3)The applicant was not a credible witness (CB 112.7).
4)The applicant was not a Roman Catholic (CB 112.9). It is clear that this finding was not based on any misrepresentation by the applicant’s lawyer, or previously submitted claims. The Tribunal rejected the applicant’s claim in this regard (a claim which he clearly made on the only evidence available to the Court now, that is, at the hearing with the Tribunal) on what the applicant said to the Tribunal at the hearing (see CB 106.6 and CB 112.8).
5)It rejected all of the applicant’s claims, given the adverse credibility findings (CB 113.5).
In all the circumstances before the Court, I agree with these submissions.

The applicant also complains that the interpreter who assisted with the preparation of his application for a protection visa did not “interpret” all of the statutory declaration, dated 16 December 2005, which was attached to his application for a protection visa. Ms. McWilliam submitted that this should be rejected as:
1)The interpreter signed the statutory declaration that he had faithfully interpreted the contents of the statutory declaration (see CB 36).
2)At CB 104.8 the applicant stated at the hearing before the Tribunal that:
“… the information in the Application for a Protection Visa (‘B’ & ‘C’) and his Statutory Declaration were read back to him in Mandarin before he signed the documents. The information contained in those documents is correct, and are still his claims. There was nothing that had been left out which he wished to claim at the hearing …
He confirmed that he would be persecuted because of his association with Falun Gong members, and because he was Roman Catholic.”
I agree with this submission and also note again, that despite opportunity the applicant has put forward no evidence whatsoever to support his complaint. On what was before it, the Tribunal was entitled to draw the adverse conclusions that it did from the circumstances presented as to when the applicant claimed he became a Catholic and his reason for “delaying” his application for a protection visa until after he was taken into immigration detention. Further, for the purposes of s.424A of the Act, the Tribunal relied on information put to it by the applicant and his adviser such that it fell within the exceptions in s.424A(3)(b) from the requirements of s.424A(1) and on information which it did put to the applicant in writing as required by s.424A(2) for the purposes of s.424A(1) (see the “s424A” letter (CB 86) and the responses to the Tribunal (CB 87 to CB 94)). In this regard see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2.
I have considered all the material in the Court Books, and the Tribunal’s decision and cannot discern any ground of review that would show jurisdictional error on the part of the Tribunal.

The Tribunal dealt with the applicant’s claims as put. It complied with its statutory obligation (s.425 of the Act) by inviting the applicant to a hearing before it. Further, the Tribunal also complied with the requirements of s.424A. The Tribunal made findings that were open to it on what was before it, including findings on credibility. The Court gave the applicant every opportunity to give substance to his complaints and provide evidence. Despite additional and specific opportunity for legal advice no evidence was forthcoming.

The application is dismissed.

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

Associate:

Date: 6 October 2006