SZIPW & Ors v Minister for Immigration & Anor - [2006] FMCA 1364

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIPW & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1364

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – RRT relying on inconsistency in evidence – whether the RRT breached s.424A of the Migration Act 1958 (Cth) considered – no breach found – application dismissed.

COSTS – Consideration of a claim for costs in excess of the Court scale.

Migration Act 1958 (Cth), ss.91R, 424A, 425

SZEPZ v Minister for Immigration [2006] FCAFC 107

First Applicant:

SZIPW

Second Applicant:

SZIPX

Third Applicant:

SZIPY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1007 of 2006

Judgment of:

Driver FM

Hearing date:

13 September 2006

Delivered at:

Sydney

Delivered on:

13 September 2006

REPRESENTATION

The First Applicant appeared in person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1007 of 2006

SZIPW

First Applicant

SZIPX

Second Applicant

SZIPY

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The Refugee Review Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant and his family protection visas. The decision was handed down on 2 March 2006. These proceedings commenced with a show cause application filed on 4 April 2006. In that application the applicant asserted notification of the RRT decision on 10 March 2006. On that basis, I find that the application was filed within time. The first applicant was the principal applicant before the RRT and made the relevant claims. For convenience, he is referred to in these reasons as “the applicant”.
The background to the applicant’s protection visa claims and the RRT’s decision on them, are conveniently set out in written submissions filed on behalf of the Minister on 7 September 2006. I adopt as background for the purposes of this judgment, with necessary amendments, paragraphs 2-4 of those written submissions:
The applicant applied for the visa on 23 June 2004: court book, pages 1-45. The delegate refused the visa on 28 June 2004: court book, pages 46-61, and the applicant applied to the RRT for review on 30 July 2004: court book, pages 62-71. After an earlier decision of the RRT (court book, pages 108-126) was set aside by consent by Scarlett FM on 7 November 2005 (court book, page 103), the RRT wrote to the applicant pursuant to s.424 of the Migration Act 1958 (Cth) (“the Migration Act”) on 4 January 2006: court book, pages 106-107, and held a hearing on 6 February 2006: court book, page 138.
The applicant claimed to fear persecution for reason of his religion in China. He claimed to have become a Christian in 1998 and participated in an underground church in Fujian province. He claimed that he allowed meetings of the church to be conducted in his store, and was detained by police in 2003 for a week and fined, and detained for a month in March 2004, and interrogated thereafter on several occasions before leaving China on 5 June 2004. He claimed that subsequently other church members had been arrested and had incriminated the applicant. See generally court book, pages 153-167.
The RRT found that the applicant was not credible and his claims to be a member of an underground church in China and to have been harmed for this reason were fabricated. The RRT noted the applicant had given inconsistent oral evidence as to his role in the church and had not adequately explained how he was able to leave China if his claim to be a key activist in the church was true. The RRT also noted that the applicant knew little about Christianity, and did not display the depth of knowledge the RRT would have expected if his claims were true. See generally court book, pages 170-172.
This matter first came before me on 26 April 2006. At that time, it was not apparent to me whether the application disclosed an arguable case of jurisdictional error. I made orders for a preliminary hearing, pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I also made orders for the filing of additional material for the purposes of that hearing. I gave the applicant the opportunity to file an amended application and additional affidavit evidence, including a transcript of the RRT hearing, by 30 June 2006.
An amended application was filed on 30 June 2006. That asserts procedural unfairness, both in relation to alleged interpretation problems, and the manner in which the presiding member conducted the oral hearing held by the RRT. Secondly, the amended application asserted a failure by the RRT to comply with its obligations under s.424A(1) of the Migration Act. Thirdly, the amended application asserted a breach of s.425 of the Migration Act, in that the applicant claimed he had not been given a genuine chance to give oral evidence and explain his claims. Fourthly, the amended application took issue with the merits of the RRT decision.
At the show cause hearing I conducted on 10 July 2006, I formed the view that the amended application did not disclose an arguable case, except in relation to the asserted breach of s.424A. In the absence of evidence, the claim of procedural unfairness, and the claim of a breach of s.425 of the Migration Act could not succeed. Further, the book of relevant documents filed on 28 April 2006, which I received as evidence both then and today, supported the contrary proposition that the proceeding conducted by the RRT on the second occasion was fair. The RRT properly invited the applicants to a hearing, and appears to have given a fair opportunity to the applicant to explain his protection visa claims. The applicant asserts interpretation problems at the hearing, but the available material provides no support for that assertion. I also noted that the applicant had, through his migration agent, requested a Mandarin interpreter, even though he now complains that that is not his first language. His response to the hearing invitation issued to him appears on page 129 of the court book.
I ordered the Minister to show cause why relief should not be granted in relation to the asserted breach of s.424A of the Migration Act, by reference to the presiding member’s reasons in the first full paragraph on page 171 of the court book.
I also gave the applicant the opportunity to further amend his application to assert a breach of s.91R(3) of the Migration Act, should he wish to, by reference to the presiding member’s reasons contained in the second last full paragraph on page 172 of the court book.

The applicant has not taken up that opportunity and I do not consider it necessary or appropriate to consider that issue further[1].
[1] See rule 44.13(2) of the Federal Magistrates Court Rules
As to the s.424A issue, the relevant finding by the presiding member was as follows (court book, page 171):
I do not accept that the applicant was a member of a Christian underground church in China. The applicant’s written claims indicated that he had been a key activist in a Christian underground church, but he also indicated at the first Tribunal hearing that he had only supplied premises and money. This inconsistency was pointed out to the applicant at the first and second hearings. At the second hearing he claimed that the person who provided premises and money is very important. I consider that the inconsistency indicates that his claims of being a member of a Christian underground church in China were fabricated to support his application for a protection visa. I consider that when the applicant was faced with difficulty during the first hearing in explaining how a key activist was able to depart China without restriction he stated that he had only been involved in supply of premises and money. However this assertion diminished much of the substance of his claim and I do not accept the explanation given for the apparent inconsistency at the second hearing.
To the extent that the second RRT decision was based upon information given by the applicant at the first hearing conducted by the RRT, that was information provided by the applicant for the purposes of the review. While there may be one or more hearings conducted by the RRT, there is only ever one review for the purposes of s.424A where an initial decision is set aside and a second decision is made[2]. The real issue is what the presiding member meant when referring to the inconsistency between the applicant’s written claims of being a key activist and his oral evidence.
[2] SZEPZ v Minister for Immigration [2006] FCAFC 107 at [39]
The applicant had asserted that he was a key member of the church in his original protection visa claims (court book, pages 34 and 35). However, he repeated the same claim in his written statement accompanying his review application to the RRT (court book, pages 66-71, in particular at the bottom of page 68). He also in that same document referred to leaving China legally (court book, page 69).

The presiding member could have been referring to either the applicant’s original protection visa claims, or the same claims repeated in his review application.
The asserted breach of s.424A fails on two bases: First, the applicant bears the onus of proof in establishing what information was relied upon by the RRT in making its decision. He has not discharged his onus of establishing that it was the protection visa claims, rather than the review claims, which were relied upon. Secondly, the relevant claims were repeated to the RRT in writing, and became information provided to the RRT for the purposes of the review. The information thereupon fell within the exception in s.424A(3)(b) of the Migration Act.
I find that the applicant has failed to establish a breach of s.424A of the Migration Act. Neither is there any substance to the other grounds in the amended application. Neither is any other jurisdictional error apparent to me.
I find that the decision of the Refugee Review Tribunal is free from jurisdictional error, and is therefore a privative clause decision.

It follows that the application must be dismissed. I will so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $6,000 on the basis of solicitor and own client costs in the order of $7,500. Costs pursuant to the court rules at this stage of a migration proceeding would ordinarily be $5,000. Mr Reilly submits that a higher order should be made in this case, noting that additional costs were incurred at the show cause hearing at which the Minister was represented by counsel, and in respect of which I reserved costs. The applicant did not wish to be heard on costs except to foreshadow the possibility that he may wish to pay by instalments.
The mere fact that there has been a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules does not of itself call for an order for costs in excess of $5,000 after a final hearing. Part 2 of Schedule 1 of the Federal Magistrates Court Rules establishes an event based scale. Prima facie, that scale calls for an order in the sum of $5,000 after a final hearing whether or not there has been a preliminary hearing under rule 44.12. There is the potential for injustice to result. Where there has been no preliminary hearing, and the Minister’s costs on a party-party basis do not equal $5,000 after a final hearing, the Minister would be expected to disclose that fact. Likewise, where there have been one or more interlocutory hearings, and as a result the Minister’s costs on a party‑party basis exceed $5,000, the Minister is entitled to request an order that costs be fixed in a higher amount[3].
[3] see rule 21.02(2)(a) of the Federal Magistrates Court Rules
I accept that in this case it was appropriate for the Minister to be represented by counsel both at the interlocutory hearing and at the final hearing. The amended application was detailed, although unsupported by evidence. In addition, the Minister was required to show cause on one issue, and potentially required to show cause on a second issue, which resulted in the Minister incurring additional expense. I reserved costs of the show cause hearing in the expectation that it was possible that the Minister might, after the final hearing, seek costs fixed in a specific amount. I accept that costs of $6,000 have been reasonably and properly incurred on behalf of the Minister in this matter when assessed on a party-party basis. I will order that the first applicant pay the Minister’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $6,000.
I do not consider it appropriate to make any order against the second applicant, who has taken no part in the proceeding, and I note that the third applicant is a child.

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

Associate:

Date: 25 September 2006