SZIPZ v Minister for Immigration
[2007] FMCA 82
•2 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIPZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 82 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal breached s.425 of the Migration Act 1958 (Cth) by failing to provide applicant with a meaningful opportunity to give evidence and present arguments. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 424A(3)(b); 425(1); 474; pt.8 div.2 |
| Abebe v The Commonwealth; Re Minister for Immigration and Multicultural Affairs; ex [1999] HCA 14 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 |
| Applicant: | SZIPZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1010 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 November 2006 |
| Date of last submission: | 3 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 February 2007 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr A. Cox, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1010 of 2006
| SZIPZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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 Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 February 2006.
The applicant was born on 9 March 1976 and claims to be from the People’s Republic of China (“the PRC”) and of Han ethnicity (“the Applicant”).
The Applicant claims that prior to arriving in Australia he was unemployed, but had done some work as a labourer in the past.
The Applicant has a wife and son who remain in the PRC.
The Applicant arrived in Australia on 31 August 2005, having legally departed from the PRC on a passport issued in his own name and a business visa issued on 25 August 2005.
On 12 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 PRC authorities, arising from his active involvement in the organisation of protests against the poor treatment of labourers in the cold storage unit where the Applicant had been employed. The Applicant claimed the protests attracted a great deal of support and as a result he and others who had taken part in the organisation of these protests were continually harassed and beaten by police. The Applicant also claimed that some of his fellow organisers had since been sent to labour camps, or to work in remote villages.
On 13 October 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 16 November 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant maintained the claims made in his protection visa application. On 20 February 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 5 April 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 has 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 Tribunal noted it had before it the Department’s file, including the Applicant’s original protection visa application and the Delegate’s decision record. The Tribunal noted the Applicant’s claim of a fear of persecution in the PRC by reason of his political opinion.
The Tribunal noted the Applicant’s claims of arrest and torture by the Public Security Bureau in August 2004 following a demonstration outside his workplace where the Applicant protested against working conditions as a cold storage worker. The Tribunal noted that the Applicant stated that he was released from detention in October 2004 after he had confessed his anti-government actions. The Tribunal noted that in March 2005 the Applicant claimed he met a journalist whom he assisted about a story about the Applicant’s plight, as a result of which the journalist was suspended from his job in July 2005. The Tribunal noted that as a result of the journalist’s suspension from his work, the Applicant began plans to secretly leave the PRC. The Tribunal noted that the Applicant claimed that police began to question him again and that he had to bribe a police officer to postpone investigating him long enough to enable him to escape from the PRC. The Tribunal noted that the Applicant claimed that, after he arrived in Australia, the police investigation in the PRC had continued and his colleagues had been arrested for anti-government activities.
The Tribunal noted that the Applicant provided no detail to the Department or to the Tribunal about the fate of the journalist or any evidence to suggest that the journalist’s suspension was in connection with the story about the Applicant. The Tribunal noted the Applicant stated the article was never published. The Tribunal noted that the Applicant said that he had assisted the journalist with the article because he did not think it was controversial, however, later said that he was apprehensive about potential impact of the article at the time.
The Tribunal accepted that the Applicant was a cold storage worker in a State run enterprise and that he had demonstrated against working conditions.
The Tribunal did not accept that the Applicant was detained in relation to a demonstration over safety conditions at his place of employment. The Tribunal noted that, even if it had accepted that the Applicant was detained because of his participation in the demonstration, the Tribunal would not have found that the detention had any “convention – related implications.” The Tribunal based that finding on the fact that the Applicant, on his own account, was released without charge and there was no evidence before the Tribunal to suggest that the authorities had considered the Applicant’s conduct as threatening the authority of the State.
The Tribunal found that the Applicant’s free use of his passport led to the conclusion that the Applicant was not of interest to the authorities at the time he left the PRC.
The Tribunal did not accept as plausible the Applicant’s claim to have bribed a police officer in relation to delaying the investigation into him as a result of his demonstration activities. The Tribunal found that the Applicant’s account of bribing the police officer to halt the investigation existed “in a factual vacuum in which other relevant figures in the story were still being arrested.”
The Tribunal did not accept the Applicant’s account of the journalist’s project or the thwarting of the journalist’s project. The Tribunal noted that the Applicant’s evidence about his expectations in assisting the journalist were inconsistent, those inconsistencies having been made orally to the Tribunal at the hearing. The Tribunal found that the Applicant had invented that part of his story to extend the lifespan of the story about the 2004 demonstration long enough to catch up with the August 2005 date in his passport.
The Tribunal found that the Applicant’s claims about authorities attempting to descend upon him after his departure as fabricated.
The Tribunal was not satisfied that the Applicant faced a real chance of convention related persecution in the PRC. The Tribunal found the Applicant’s claimed fear of persecution is not well founded and that he is not a refugee. For those reasons, the Tribunal, having considered the evidence as a whole, was not satisfied that the Applicant is a person to whom Australia owes protection obligations and therefore the Tribunal affirmed the decision not to grant a protection visa application.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter. The Applicant confirmed that he relied on an amended application filed on 11 September 2006. The amended application includes matters of submission as well as alleged grounds. I have endeavoured in these Reasons to identify those allegations that appear to give rise to a possible ground of review. The structure of the Grounds of Application is most unhelpful.
Ground 1 of the amended application alleged that the Tribunal had failed to consider his claims properly and fairly. The Applicant provided particulars in support of the allegation which largely cavilled with the findings and conclusions made by the Tribunal about his claims, particularly the failure of the Tribunal to accept the veracity of his claims.
Particulars (a), (b), (e), (f), (i) and (j) are all particulars that do no more than cavil with the factual findings and conclusions made by the Tribunal. It is clear from the Tribunal’s decision that it understood the Applicant’s claims, however, it was not satisfied about the veracity of those claims. Those are credit findings that were open to the Tribunal and for which it gave reasons. The particulars do no more than seek merits review of those findings. This Court has no jurisdiction to undertake such a function (Abebe v The Commonwealth; Re Minister for Immigration and Multicultural Affairs; ex [1999] HCA 14 at [195]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).
Particulars (c), (d), (g), (h), (j), (k) and (m) relate to complaints about the Tribunal failing to follow the guidance contained in the UNHCR Handbook. To that extent, they do not disclose an error capable of review.
Adjourned hearing
Because it was not clear from the Tribunal’s decision that the adverse findings made by it had arisen solely from information provided to the Tribunal by the Applicant, the hearing was adjourned for the purpose of the preparation of a transcript of the hearing.
At the adjourned hearing, the Applicant made no further meaningful submissions, other than to maintain his opposition to the conclusions of the Tribunal.
A perusal of the transcript, that was annexed to the affidavit of Kimberley Karen Rose, affirmed 23 November 2006 and read by the Respondent in support of the Respondent’s submissions, reveals that the Tribunal asked the Applicant relevant questions arising out of his claims and put to the Applicant concerns it had about the information before it. The transcript makes it clear that the Applicant had every opportunity to explain and expand upon his claims and to answer the concerns put to him by the Tribunal about his evidence.
Whilst particular (j) alleges that the Tribunal did not allow the Applicant to fully explain his claims, the Applicant did not identify any particular parts of the transcript that supported that allegation.
Similarly, the complaint contained in particular (k) that the Tribunal should have given the Applicant a fair chance to make further explanation. Again no parts of the transcript are identified by the Applicant in support of that allegation.
Similarly, particular (m) is no more than the bare assertion that the Tribunal ignored or failed to consider a claim. No claim is articulated by the Applicant in particular (m), nor is there any further particular beyond the bare assertion that the Tribunal member ignored other relevant material or misunderstood the Applicant’s claim.
In the circumstances ground 1 is not made out.
Ground 2 of the Applicant’s amended application alleges that the Tribunal failed to comply with s.424A(1) of the Act. The particulars furnished by the Applicant in his amended application in support of this claim do not disclose information that the Applicant alleges ought to have been given to him by the Tribunal in compliance with s.424A(1) of the Act.
In any event, it is clear from the transcript that all the information relied upon by the Tribunal in affirming the decision under review was information provided by the Applicant to the Tribunal at the hearing and is therefore excluded from the obligations of s.424A(1) by reason of s.424A(3)(b) of the Act.
Accordingly, ground 2 is not made out.
Alleged breach of s.425(1) of the Act
Ground 3 alleges that the Tribunal failed to comply with obligations under s.425(1) of the Act. Section 425(1) of the Act obliges the Tribunal to invite the Applicant to appear before it and to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Ground 3 of the amended application complains that the Tribunal breached its obligation under s.425(1) because the Applicant was only allowed to reply to questions put by the member “directly and simply”. Particular (c) of ground 3 complains that the Tribunal did not make clear to the Applicant its concerns about the Applicant’s evidence that were used as the main reason for its decision.
However, the transcript makes clear that the Applicant had every opportunity to expand upon his claims and to answer concerns expressed by the Tribunal. The findings and conclusions made, arising out of that evidence and other information before the Tribunal, were open to it on the material before it and for which it had reasons.
The Applicant in written submissions relied upon at the adjourned hearing, identified complaints and disagreement with findings made by the Tribunal arising out of answers to questions proposed by the Tribunal and answered by the Applicant. The examples contained in the Applicant’s submissions do not support the allegation that the Applicant was interrupted many times and not given an opportunity to explain his claims.
In order to amount to jurisdictional error, the deficiency of interpretation must be of such poor quality that an Applicant is effectively deprived of his right to appear. (VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723) per Finkelstein J at [27]).
To the extent that the Applicant complained about the standard of interpretation at the Tribunal hearing no particulars were provided, beyond the bare assertion. There is no evidence before this Court of any misinterpretations. The Applicant did not identify any particular part of the transcript as revealing a suggestion that the Applicant had no real opportunity to express himself and fully answer questions put to him be the Tribunal.
In the circumstances, the Applicant’s claim about misinterpretation is not made out.
Otherwise the Applicant was invited to attend a hearing before the Tribunal and did in fact attend.
The Applicant has not persuaded this Court that the transcript discloses that the Tribunal failed to comply with its obligations under s.425(1) of the Act by denying the Applicant an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
As stated above, the findings and conclusions made by the Tribunal were open to the Tribunal on the evidence and material before it. In particular, the Tribunal concluded that it was not satisfied that the Applicant met the criteria required for a protection visa application. In the circumstances, s.65(1) of the Act compel the Tribunal to refuse the Applicant a protection visa where it was not satisfied that the prescribed criteria had been met.
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 Applicant’s proceeding before this Court is dismissed
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 31 January 2007
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