SZIPU v Minister for Immigration - [2006] FMCA 1824

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIPU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1824

MIGRATION – Refugee Review Tribunal – Protection visa – no jurisdictional error – credibility findings.

Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v MIMA (1998) 86 FCR 547

Applicant:

SZIPU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1005 of 2006

Judgment of:

Mc Innis FM

Hearing date:

4 December 2006

Delivered at:

Sydney

Delivered on:

4 December 2006

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Ms E Warner Knight

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1006 of 2006

SZIPU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter the Applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 21 February 2006. The Tribunal affirmed a decision of a delegate of the First Respondent who had refused an application of the application for a protection visa.

The Applicant before this Court is self-represented, non-English speaking, though assisted by an interpreter. Accordingly, it is not surprising that in her application the Applicant without the assistance of legal representation has simply asserted as the grounds for the application the following:
“1. Jurisdictional error has been made.
2 Procedural fairness has been denied.”
There are no particulars provided in relation to those grounds.

The Applicant has asserted before this Court that she did not think that the Tribunal made a fair decision and has claimed that before the Tribunal she was very nervous.
In the circumstances, I am prepared to accept the claim that she was very nervous made by the Applicant from the Bar table without the need for her to give evidence. However, accepting that she was very nervous before the Tribunal does not of itself provide any or any proper basis upon which the Court is able to conclude that of itself is a sufficient particular of the grounds relied upon, namely the ground of jurisdictional error or denial of procedural fairness.
I note that the Tribunal has considered the claims made in some detail. I further note, as indicated by the First Respondent’s representative, that the details of the hearing set out in the Court Book indicate that the hearing lasted for approximately one hour and the Applicant was present and was assisted by coincidentally the same interpreter who is assisting before this Court today.
To understand the Applicant it is appropriate to refer to the background which has been accurately and helpfully set out in the First Respondent’s outline of submissions. The Applicant is a citizen of China and arrived in Australia on 16 November 2005.

On 23 November 2005 she lodged an application for a protection visa which was refused by a delegate of the First Respondent on

13 December 2005. She then lodged the application for review with the Tribunal on 9 January 2006 and, as indicated earlier, the Tribunal in a decision dated 21 February 2006 handed down on 7 March 2006 affirmed the delegate’s decision.
The Applicant claimed in her visa application that she practised Christianity through her neighbour who organised church gatherings at her home. The Applicant indicated in her claim that she had been unemployed from 1994 to 2001 and began attending the neighbour’s meetings in 1996. She claimed that in September 2000 local police came to the neighbour’s house where the Applicant and five others had attended during a meeting. The Applicant claimed to have been detained along with others for three days and that the organiser of the meeting was detained for three months.
She claimed that in 2001 she obtained a job in a trading company and in 2001 again saw the neighbour who had organised the meetings and was aware that in December 2001 police again attended the neighbour’s premises. The Applicant claimed if she returned to China she would have to give up her Christian beliefs and, if not, would be caught and sent to detention at any time by local police and the residential committee in the same way as her neighbour.
The Tribunal noted the claims made by the Applicant. It is useful to refer to an extract from the Tribunal’s decision where under the heading “The Review Hearing” the Tribunal sets out the various claims made by the Applicant, but importantly also sets out an exchange which occurred between the Applicant and the Tribunal where the Tribunal was clearly seeking to explore with the Applicant the nature of her claim. Ultimately the Tribunal made significant adverse findings in relation to the Applicant. Indeed whilst noting that when determining a claim based on religion the issue is whether the Applicant held a sincere belief and that finding that there was not a sincere belief was not fatal to that claim, the Tribunal did make significant adverse findings and indeed found the Applicant had fabricated most of her claims and was not a witness of truth.
It is instructive to consider the reference by the Tribunal to the exchanges that occurred at the review hearing. By example, just one of the exchanges which appears in the Tribunal’s decision Court Book p.82 where the following appears:
“The Tribunal asked the applicant whether she had been baptised. The applicant was then asked to describe the baptism process. The applicant replied that she had been baptised in June 2004. The Tribunal asked the applicant to elaborate. She advised that
“She went to old lady Chen’s place and the old lady Chen had a white piece of cloth and a glass of water”.
The applicant was at a loss to provide any further explanation. The Tribunal pressed the issue further with the applicant. The applicant then stated:
“I am not familiar with the Bible. I believe God will bring me good things. My neighbour, old lady Chen stated that if you have a strong belief, I will set a date for your baptism and all the sisters will attend.”
The Tribunal once again asked the applicant to provide it with a description of the baptism ceremony. The applicant stated:
“We put a song from the Bible on called ‘God’s Road’. All the sisters sat there and old lady Chen sat down. She said something to me. I couldn’t understand it. She said something like ‘God protect you’ or something like that.”
The Tribunal asked the applicant what baptism meant. The applicant stated that she was formally one of them. The Tribunal sought clarification of who she meant. She then responded, “my neighbours and sisters at the church.”
The Tribunal then proceeds to set out further exchanges between the Applicant and the Tribunal and indeed sets out quotations from the Applicant by way of responses to questions directed towards the Applicant by the Tribunal. It is clear from the Tribunal’s decision and its reference to the questions asked of the Applicant and the Applicant’s response that, in my view, the Tribunal has directed appropriate questions to the Applicant in pursuing its fact-finding mission in relation to this application.
Ultimately, as indicated, the Tribunal made significant adverse findings. Those findings were in part based upon the answers given to a number of questions raised by the Tribunal, an example of which is set out earlier in this judgment.
The First Respondent has submitted that in this instance in the absence of particulars subjoined to the grounds relied upon it is “not possible to meaningfully address either of these claims as their substance is unknown.” In my view, that is clearly correct. It is my view that where an Applicant fails to particularise general claims, then it is not appropriate for the First Respondent to attempt to guess or otherwise make assumptions as to what may or may not be the particulars of the claims. As a model litigant, however, the First Respondent has endeavoured to at least analyse the reasoning process of the Tribunal and has noted the adverse findings made by the Tribunal as a result of the questioning process, part of which has been revealed in the quotation from the Tribunal decision set out above.
It is submitted by the First Respondent, and I accept, that on the basis of the answers given by the Applicant the Tribunal found her not to be a credible witness and that those credit findings are matters of fact for the Tribunal referred to as findings par excellence (see Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 67. It is further submitted and I accept, that the Tribunal’s findings need only be findings open to it (see Kopalapillai v MIMA (1998) 86 FCR 547 at 558-559).
I accept, as submitted by the First Respondent, that the findings in this matter were findings reasonably open to the Tribunal free of jurisdictional error. I make that finding having regard to the reasoning of the Tribunal and noting the general criticisms and grounds relied upon by the Applicant are not particularised. I do not have any difficulty accepting that the Applicant is sincere and genuine in asserting that she did not believe the Tribunal made a fair decision or indeed in asserting that at the time when she gave her evidence to the Tribunal she was very nervous.
However, the mere fact that the Applicant has a perception that the findings were not fair and that that perception may in part be based upon her claim that she was very nervous before the Tribunal does not of itself in the circumstance of this case provide any or any proper basis upon which the Court can conclude that there has been jurisdictional error or error of any kind which would permit the Court to interfere with the decision of the Tribunal. I am satisfied that on a proper reading of the Tribunal’s decision that there has been no error and the Tribunal has merely made adverse findings of fact reasonably open to it after due consideration of the claims made by the Applicant.
It follows for those reasons that the application should be dismissed with costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 4 December 2006