SZISD v Minister for Immigration

Case •

[2006] FMCA 1175

•

7 August 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZISD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1175
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 – applicant is a citizen of The People’s Republic of China claiming fear of persecution for reason of religion – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Chan Yee Kim v Minister for Immigration & Multicultural and Indigenous Affairs (1989) 169 CLR 379
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Applicant: SZISD
First Respondent: THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 1118 of 2006
Judgment of: Scarlett FM
Hearing date: 2 August 2006
Date of last submission: 2 August 2006
Delivered at: Sydney
Delivered on: 7 August 2006

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Kennett
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $4,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1118 of 2006

SZISD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal that was signed on 24th February 2006. The Tribunal handed down its decision on 16th March 2006. 

  2. The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and found that he did not satisfy the criterion set out in sub-s.36(2) of the Migration Act for a protection visa.

  3. Accordingly, the Tribunal affirmed a decision of the delegate of the Minister not to grant a protection visa to the Applicant. 

Background

  1. The Applicant is a citizen of the People's Republic of China, who arrived in Australia on 25th September 2005. On 3rd November 2005 he applied for a Protection (Class XA) visa. After his application was refused on 18th November 2005, the Applicant sought a review of that decision from the Refugee Review Tribunal. 

  2. The Applicant lodged his application for review on 14th December 2005. He did not provide any other documents to the Tribunal at that stage. The Tribunal wrote to the Applicant on 3rd January 2006 inviting him to attend a hearing. The Applicant replied that he did wish to attend and forwarded some photographs to the Tribunal and a document, in English, headed "Appeal to the refusal of my protection visa application".

  3. The Applicant claimed that he had formed a political party, called the ‘Guangming’ Party and took part in democratic and religious activities that were prohibited by the Chinese Government. After he heard that three of his colleagues had been arrested and imprisoned, he left China. 

  4. The Applicant provided various documents to support his case including identity cards and a marriage certificate. He provided some further documents in Chinese when he attended the hearing, along with his passport and some further photographs. 

  5. The Applicant gave oral evidence at the hearing on 31st January and told the Tribunal that he was a follower of the Christian religion and attended a church in China called Local Recovery. He said that he had been detained for 14 days in early 2004 because of his Christian activities. He said that he attended a church in Sydney, which had its services in someone's office, but did not have a name. 

  6. The Tribunal Member asked the Applicant a number of questions about his claims. The Tribunal put to the Applicant for his comments certain evidence obtained from independent sources including the United States' State Department Country Report on Human Rights Practices for 2004. 

  7. The Tribunal indicated, in a passage that appears at page 100 of the Court Book, that it found it difficult to believe that the Applicant had seen on the internet certain material indicating that the Chinese Government was planning to legalise political parties in the light of the information from the United States' State Department. The Applicant indicated that possibly someone had just written that on the internet.

Tribunal’s Findings and Reasons

  1. The Tribunal set out its findings and reasons and they appear at pages 108 through to 111 of the Court Book. The Tribunal was satisfied and found that the Applicant was a national of the People's Republic of China. The Applicant had produced a passport and certain identity documents.  Nevertheless, the Tribunal went on to find:

    I am unable to establish with certainty whether his real name is A [and I have suppressed the name used], B [that name is suppressed] or some other name.

    However, he travelled from China, using a People's Republic of China passport, clearly regarded as genuine by the Australian Embassy issuing his visa in the name of "B".

    He signed his statement to the Department in that name.

  2. The Tribunal indicated that it considered reliable the evidence from independent sources that Fujian, which is the part of China from which the Applicant claimed to have come, has numerous churches, both registered and unregistered. 

  3. The Tribunal was satisfied that many of the unregistered groups were able to conduct their religious practices without harassment or harm and that it was those groups which became too large, and thus too political threatening, which might attract penalties.

  4. The Tribunal was not satisfied that the applicant had established a political group with a Christian focus as he claims to have done. The Tribunal sets out the reasons why the Tribunal was not so satisfied and those reasons, which are set out in six paragraphs, can be found on pages 108 through to 110 of the Court Book.

  5. The Tribunal went on to find at page 110:

    For the reasons set out above, I am not satisfied that the Applicant has been truthful about the events leading to his departure from the PRC and do not accept that he was politically active in any way.

  6. The Tribunal was not satisfied about the Applicant's claim to have attended an unnamed church in Sydney or from the Applicant's claim that the knowledge he displayed about the Bible was gained in China, rather than after he arrived in Australia.

  7. The Tribunal found that the Applicant did not hold and is not suspected of holding anti-government views in China and therefore found the chance remote that he may be persecuted in China for the reason of his religion or political opinion. 

  8. As the Applicant did not claim to fear persecution for any other reason, the Tribunal found that the Applicant did not hold a well founded fear of convention related persecution in China. 

  9. It was for those reasons, therefore that the Tribunal affirmed the decision of the Delegate.

Application for Judicial Review

  1. The Applicant commenced proceedings in this Court by means of an application under the Migration Act according to r.44.05. That document was filed on 13th April 2006 and was accompanied by an affidavit of the Applicant that same day.

  2. In the application, the Applicant claimed that the decisions made both by the Department of the Immigration and the Refugee Review Tribunal were not fair and that those decision involved jurisdictional error in many places.

  3. The Applicant went on to state that the Tribunal believed that there were no Convention related reasons as to why he could not return to China and also stated that the Tribunal did not accept his credibility. He sought an Order quashing the Tribunal's decision.

  4. In the Applicant's affidavit, sworn on 13th April, as well as annexing a copy of the Tribunal decision, the Applicant set out the name that he had used and what he claimed to be his real name. He also claimed that he was treated badly in China, due to his involvement in the ‘Guangming’ Political Party. He expressed the belief that both the Department of Immigration and the Refugee Review Tribunal did not give him a fair process.  He asserted that all of the matters that he had said were true.

  5. The Applicant attended the hearing and made submissions with the assistance of an interpreter in the Mandarin language.

  6. I explained to the Applicant that in a judicial review of the decision of the Refugee Review Tribunal, the Court would not look separately at any alleged mistakes made by the Department of Immigration and Multicultural Affairs. The purpose of the proceedings was to examine the decision of the Refugee Review Tribunal. 

  7. The Applicant told the Court that he had taken advantage of the Refugee Review Tribunal scheme to provide legal advice and that he had seen a barrister. He said that the barrister had told him that he had identified a couple of jurisdictional errors, but he had not obtained the letter of advice. The Applicant was under the belief that the letter of advice may have been forwarded directly to the Court.

  8. In my view, the Court should not ignore the Refugee Review Tribunal Legal Advice Scheme. There is no right to legal advice but the lack of legal advice is a misfortune. 

  9. I took the decision to adjourn the matter for a period of time, in order that contact could be made with the practitioner who had provided the legal advice, and whom the Applicant expected to at least produce a document, if not appear for him.

  10. The legal practitioner concerned, a Mr Atkin, I am informed told my Associate that it was never his intention, nor had he been briefed, to appear on the proceedings, but that he had forwarded a letter of advice to the Applicant, which he expected that the Applicant would have received before the morning of the hearing.

  11. He said that he would fax a copy of that document to the Court and expressed a rather curious anxiety that there was a possibility that my Associate might show the document to me. 

  12. I understand that my Associate managed to allay his fears that the Court would act in such an improper manner, and when the document arrived, I again stood the matter down, so that the Applicant could have the opportunity of going through that letter of advice, with the assistance of the interpreter.

  13. The Applicant was then ready to resume the hearing early in the afternoon.  He told the Court that as a result of the advice that he had received, there were three grounds upon which he wished to submit that the Tribunal had fallen into error.

  14. The first ground concerned his true name. He noted that the Tribunal had talked about his name and he pointed out that he had provided his Chinese identity card to the Tribunal, but the Tribunal Member did not examine the document provided to him in a careful manner. He said that the Tribunal made the decision that his real name was "B", when it was in fact "A". 

  15. The second ground was that the Tribunal, when it examined his case, did not carefully read all the documents, including his statement. He claimed that the Tribunal refused his application because the Member concluded that the information about the ‘Guangming’ Party did not tell the Tribunal what the Party's goals and objectives were. He said that that was incorrect, as that material was in the statement that he had provided to the Refugee Review Tribunal. He said that he had told the Tribunal of his Party's objectives and goals. He believed that the Member did not read his statement carefully before the member made a decision to refuse his application.

  16. The third ground was that the Tribunal based its finding on a report from the United States' State Department. The Tribunal made a judgment which related to the wide situation in China. China, he said, is a very big country, but the political party that he had established was only a small party. Because of the small size of the party, it was not reported in the United States' State Department Report. The Applicant was of the view that the Tribunal made an error on that point.

  17. For the First Respondent Minister, Mr Kennett of Counsel submitted that whilst the Applicant had tendered a Chinese identity card, there were grounds for the Tribunal to make the finding that it did about the Applicant's name. He also submitted that the Tribunal had gone to consider the other elements of the Applicant's evidence and was, of course, satisfied that the applicant was a national of the People's Republic of China. In those circumstances, the question of the Applicant's actual identity did not bear upon the Tribunal's ultimate conclusions. 

  18. Turning to the second ground, which was the Applicant's claim that the Tribunal Member did not read all the documents carefully, including the Applicant's statement, Mr Kennett submitted that there was no evidence before the Court as to how much time that the Tribunal had taken to look at the documents. It appeared clear from page 109 of the Court Book that the Tribunal had considered the matters that the Applicant had raised in his documentary evidence. He also submitted that the Applicant's second ground sought merits review, which is not permissible on the judicial review of an administrative decision. 

  19. Again, in respect of the third ground, where the Applicant was in fact cavilling at the factual findings relied on by the Tribunal in respect of the report from the United States' State Department, Mr Kennett submitted, that too was no more than an impermissible attempt to challenge the merits of the Tribunal's factual finding. 

  20. In my view, the first ground put by the Applicant must fail. True, it is that the Tribunal was unable to establish with certainty the Applicant's real name. The fact that the Applicant submitted that the evidence showed that his name was "B", instead of the name "A" that he had previously used, is no more than a challenge to the Tribunal's factual finding.  The assessment of the evidence is a matter for the Tribunal.

  21. There was evidence about the Applicant's identity and it is within the province of the Tribunal's examination of that evidence for it not to be satisfied with certainty about the Applicant's real name. 

  22. The finding as to the Applicant's identity did not in any way relate to the finding about the Applicant's nationality. There was nothing to suggest that the Applicant was not a citizen of the People's Republic of China, as he had claimed. 

  23. I agree with the submission by Counsel for the Respondent Minister that the inability of the Tribunal to be satisfied about the Applicant's identity did not have any effect on the other findings made by the Tribunal, which are set out on pages 108 through to 110 of the Court Book. 

  24. I am of the view that the second and third grounds raised by the applicant at the hearing amount to a challenge to the factual findings of the Tribunal. It is well established that seeking merits review of the Tribunal's finding at a judicial review proceeding is an impermissible exercise, provided of course that there is evidence upon which the decision maker can be satisfied. It is not a function of the Court exercising judicial review to substitute its own conclusions on the factual evidence for those of the Tribunal member.

  25. There are many cases which point to the unavailability of merits review on a judicial review hearing and I refer to the Full Court decision of NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and the earlier decision of the High Court of Australia in Chan Yee Kim v Minister for Immigration & Multicultural and Indigenous Affairs (1989) 169 CLR 379. I'm satisfied each of these grounds is, in fact, cavilling in to factual finding and amounts to no more than a request for merits review.

  26. In my view there is evidence that the Tribunal did consider the Applicant's claims, but in the circumstances, it was not satisfied on the evidence that the Applicant met the criterion for the grant of a protection visa. 

  27. It is well established that it is not required of the Tribunal to set out positive reasons for rejection of an applicant's claim. It is up to the Applicant to provide evidence to the Tribunal that the Applicant meets the criteria for a visa. Section 65 of the Migration Act provides that if the Applicant meets the criteria for a visa, then the Minister, or in this case the Tribunal standing in shoes of the Minister, must grant the visa.

  28. If, however, the Tribunal is not satisfied that the Applicant meets those criteria, and that could well be on the basis of the inadequacy or the insufficiency of the evidence advanced by or on behalf of the Applicant, then the Tribunal must refuse the visa, and it is this situation which is the case here. The Tribunal was not satisfied and, accordingly, as the Tribunal was not satisfied; the Tribunal was obliged to affirm the decision of the Delegate of the Minister.

  29. The Applicant has not established jurisdictional error.  I am mindful of the fact that even though he had some relatively brief legal advice from a practitioner, the Applicant was not legally represented at the hearing. 

  30. I have conducted my own independent examination of the Tribunal decision, in order to ascertain whether the applicant has an arguable case for some other jurisdictional error. I am unable to discern any arguable case. I am satisfied that the decision is a privative clause decision under the provisions of s.474 of the Migration Act.

  31. There is no jurisdictional error and the absence of jurisdictional error permits me to make such a finding and I refer to the decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

  32. As the decision is a privative clause decision it must follow that the application will be dismissed.

  33. There is an application for costs. The Applicant has been wholly unsuccessful in his claim.  It is my understanding that under r. 44.15, the Court may in relation to a proceeding that has concluded order that an unsuccessful party in the proceeding must pay the costs of the successful party in accordance with Item 1, Part 2 of Schedule 1. The amount sought, $4,750.00, which is inclusive of Counsel's fees, as I understand it, comes within the amount provided in Part 2 of Schedule 1.  As such it is an appropriate figure and I order that the Applicant is to pay the First Respondent's costs, fixed in the sum of $4,750.00. 

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date: 15 August 2006

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