SZISJ v Minister for Immigration
[2006] FMCA 1884
•12 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZISJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1884 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of the People’s Republic of China – applicant claims fear of persecution for reasons of his religious belief – credibility – bias – bad faith – irrationality – illogicality – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2), 424A, 425, 474 |
| NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 236 NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 |
| Applicant: | SZISJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1169 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 December 2006 |
| Date of Last Submission: | 12 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1169 of 2006
| SZISJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 16th March 2006 and handed that decision down on 6th April. The Tribunal affirmed the decision of a delegate of the minister not to grant the applicant a protection visa.
The background to this matter is that the applicant is a citizen of the People's Republic of China. He arrived in Australia on
16th August 2005 and one month later on 16th September he applied for a protection (Class XA) Visa. On 12th December 2005 a delegate of the Minister refused his application for a visa. Accordingly, on
17th January 2006 the applicant applied to the Refugee Review Tribunal for review of that decision.
The application for review was accompanied by a one page typed statement addressed to the Tribunal, together with a notarial certificate and some other identity documents. The application for review referred to the applicant by two different names and indeed by two different birth dates. The applicant's typed statement to the Tribunal said:
I write to provide explanation about why I have a new name in my review application. I arrived in Australia with a Chinese passport under the name of A. In order to get permission to work I didn't declare my true name to the Immigration Department as without a working right I could hardly survive. I am sincere Christian and I have been blaming myself for having not declared the truth. Now I wake up to myself and understand that without being honest nobody could help me. As my identification documents are on the way to Australia I haven't got all of them in my hands now but I will pass them on as soon as I receive them. Now, I fax you the notary marriage certificate of mine and an identification card and a certificate to prove my participation in our underground church in China. I would have them translated into English and will forward to you soon. I hope that you may take in my application and I will provide you with further information soon.
The Tribunal wrote to the applicant on both the 18th and
24th January 2006 acknowledging receipt of his application and advising him that he may be invited to attend the hearing.
On 25th January the Tribunal did write to the applicant inviting him to attend a hearing of the Tribunal on Tuesday 21st February 2006.
Later, on 21st February, the Tribunal wrote to the applicant advising that due to circumstances beyond their control they would not be able to have a hearing on 21st February and a new hearing date was scheduled for Thursday 2nd March. The applicant responded to that invitation in writing saying that he wished to attend the hearing and that he would like a Mandarin interpreter.
The Tribunal then wrote to the applicant advising that due to circumstances beyond the Tribunal's control, a hearing on
2nd March would not be possible and a new hearing date had been set for Wednesday 8th March. The applicant completed a form addressed to the registrar saying:
I agree to waive off the normal notification time given for the hearing invitation letter.
The applicant signed that letter with the name that he had said in his statement was his assumed name. He completed the response to hearing invitation again saying he wanted to attend the Tribunal hearing and needed an interpreter in Mandarin.
The applicant attended the hearing and gave evidence about his case. He explained that he had assumed someone else's identity and secured the passport in the name of the person to whom I previously referred as A. The applicant gave his real name and explained that he had taken on that other person's identity and obtained a passport in the false name because that would be the only way he could leave China.
The applicant told the Tribunal that he seeks protection because in China any kind of religion or religious institution has to be recognised by the Chinese authorities. As a Christian he needed to be free.
He said he was a devoted Christian who was engaged in church activities and had come to the adverse attention of the government authorities. The Tribunal then asked him a number of questions about his religious belief and about his church activities. The applicant told the Tribunal that he had a wife and daughter back in China and told the Tribunal about his work history. The Tribunal asked him a number of questions about all of that material.
The Tribunal decision record can be found in the Court Book at pages 85 through to 99. The Tribunal set out the applicant's claims and evidence at pages 88 through to 94. The Tribunal also noted country information on pages 94 and 95 including a report from the United States Department of State about freedom of religious belief and about the controls exercised upon religious groups and spiritual movements within the People's Republic of China. The Tribunal's findings and reasons are set out on pages 95 through to 99 of the Court Book.
The Tribunal noted that an unusual element of the case was the issue of the applicant's identity and the Tribunal dealt with that issue before addressing the substantive issues. The Tribunal accepted the evidence produced by the applicant as to his real identity and found that the applicant was in fact the person B and not the person called A on the passport. The Tribunal accepted the applicant's claims that he was born on 1st March 1979 in Fuqing in Fujian province.
The Tribunal went on to say this at page 96:
The Tribunal further notes that the basis of the decision in this application is the testimony provided by the applicant at the hearing and any subsequent information he gave the Tribunal.
The Tribunal decided that a threshold question that arose was whether or not the applicant was a Christian. Based on the applicant's testimony the Tribunal accepted and found that it was more likely than not that the applicant is a Christian but went on to warn that a finding that the applicant is a Christian does not resolve the issue as to whether the applicant was persecuted or faces persecution in China.
The Tribunal then considered the question as to whether the applicant faced persecution in China because of his membership with an underground church. The Tribunal considered a letter submitted by the applicant, purportedly written by his church and signed by four elders or leaders in his church and noted the applicant's evidence about that letter. The Tribunal considered the letter but decided not to put much weight on it, on the basis that if the letter had been signed by elders of the church who were more senior than the applicant and that those people remained in China, it did not seem plausible that the applicant, who was not a leader, would be subject to persecution whilst the leaders still remained in China.
The Tribunal noted the applicant's claims of fears of persecution and how one member of his church was arrested and following that arrest the applicant was offered a passport with a visa for Australia to leave the country.
The Tribunal considered the evidence and found that there was no credible evidence that supported the applicant's claim that is organisation was subject to persecution in China. The Tribunal was not satisfied that the applicant faced or faces persecution in China because of his association with his church activities.
The Tribunal noted the applicant's claim that he was forced to go into hiding for six to seven years and that he claimed he was spreading the Gospel throughout these years and was in hiding from the authorities. The Tribunal noted that this was referred to in the letter from the church elders to which the Tribunal did not attach much weight.
The Tribunal found that there was no credible evidence that the applicant had fled to the provinces which he claimed because of problems with the authorities. It went on to find that by the applicant's own admission he was also employed in these provinces as a plasterer and worked for a brief period at a petrol station. As the Tribunal said:
Far from going into hiding he worked in the building industry and at a petrol station in public.[1]
[1] Court book at 98
The Tribunal found that the evidence led it to conclude that the applicant had moved to those two provinces in search of work and not to hide from the authorities because of his association with his church. The Tribunal was not satisfied that the applicant was forced to flee his home city to other provinces because of persecution or religious grounds. The Tribunal found that the applicant's claims did not disclose a credible basis to conclude that he was subject to persecution in China and the Tribunal was not satisfied that the applicant faced persecution in China because of his Christian beliefs or that he faced persecution in China if he were to return to that country.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations and therefore did not satisfy the criterion set out in sub-s.36(2) of the Migration Act for a protection visa.
The applicant seeks judicial review of that decision and has filed an application and an affidavit in support. I note that he used the false name rather than the name which he told the Tribunal was the true name and which the Tribunal accepted. The applicant filed an amended application on 8th September 2006. The applicant seeks an order setting aside the decision of the Refugee Review Tribunal, a declaration that he was a refugee and an order in the nature of prohibition restraining the Tribunal and the department from removing him from Australia.
I would comment at this stage that a Court conducting judicial review does not have jurisdiction to make a declaration that the applicant is a refugee. The order in the nature of prohibition restraining the various parties from removing the applicant from Australia should not be directed at the Refugee Review Tribunal as that Tribunal has no power to remove any person from Australia.
The amended application contains a number of grounds which I will read out and summarise as follows:
i)The Tribunal failed to carry out its statutory duty.
ii)Before the applicant attended the hearing the Tribunal had determined that he was to fail the review.
iii)That the Tribunal's decision was based on unwarranted assumptions or was based on reasoning which was irrational or illogical.
iv)The Tribunal did not consider that he used his true ID in the hearing.
v)The applicant brought new evidence from the local church to prove his situation.
vi)The Tribunal failed to carry out its decision in a bona fide manner.
Those are the six grounds that I can ascertain from the application. First; the applicant alleges that the Tribunal failed to carry out its statutory duty. On the evidence before me the Tribunal accepted the applicant's application for review and complied with s.425 of the Migration Act by inviting the applicant to a hearing. It was unfortunate that that hearing had to be postponed on not one but two occasions but there is in the Court Book a copy of a document signed by the applicant waiving any right to an extension of time in respect of a postponed hearing. In my view that is probably unnecessary but in any event I am satisfied that the waiver signed by the applicant would cure any possible defect. The Tribunal invited the applicant to a hearing which he attended. He asked for and received an interpreter in the Mandarin language and he was able to give oral evidence.
The Tribunal's decision was based on the applicant's oral evidence to the Tribunal and on some documentary evidence which he submits to the Tribunal as part of his application. Thus, there can be no breach of s.424A of the Migration Act in that all of the material considered by the Tribunal came from the applicant himself as part of his application for review by the Tribunal. There is no breach of ss.424A or 425 or any other section that I can identify. Thus, the first ground fails.
Second; the applicant has claimed bias on the part of the Tribunal in that he claimed that the Tribunal has determined that he failed the review in their mind even before he attended the hearing. There is no evidence of that. There is no evidence of that whatsoever. In any event, bias and bad faith have been considered by the Full Court of the Federal Court in a number of cases including SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361. Their Honours at [43] through to [48] set out a number of propositions in respect of bias or bad faith. At [43] their Honours say that an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. The allegation is not to be lightly made and must be clearly alleged and true. At [44] their Honours say that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review. In my view there is no evidence of bias.
The final ground in the amended application is that the RRT failed to carry out its decision in a bona fide manner. Similarly there is no evidence of bias and there is no evidence of failure to carry out its decision in a bona fide manner. I refer again to the decision of the Full Court of the Federal Court in SBBS (supra).
The third ground was that the Tribunal's decision was based on unwarranted assumptions or was based on reasoning which was irrational or illogical. There is no evidence of any unwarranted assumption. There is not, to my mind, any evidence of either irrationality or ill-logicality. The Tribunal based its decision entirely on the applicant's own evidence. The Tribunal considered that evidence and decided that it was not satisfied that the applicant had established that he was a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol. There is no ill-logicality or irrationality or no warranted assumption that I can discern. In any event; it is well established by decisions such as NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 236, NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 and VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 that irrationality and ill-logicality do not constitute jurisdictional error. This ground must fail.
The fourth ground is that the Tribunal did not consider that the applicant used his true identity in the hearing. Well that is just factually wrong. The Tribunal did consider that. The Tribunal noted that evidence and accepted the applicant's evidence that he had arrived in Australia under a false name with a passport in a false name.
The Tribunal accepted the applicant's evidence that he was who he said he was. There is no substance to that ground and clearly it must fail.
The next ground is that the applicant brought new evidence from the local church to prove his situation. The applicant sought to tender a certificate to the Court today about church membership. When asked if he had shown that certificate to the Tribunal he said that he had not because the Tribunal did not ask to see it. I rejected the tender on the basis that the applicant was seeking to produce evidence to the Court which had not been before the Refugee Review Tribunal. The Court does not consider fresh evidence going to factual matters. A judicial review is not a hearing de novo. The evidence was inadmissible.
Not one of the grounds referred to by the applicant in his amended application establishes a jurisdictional error. I am mindful of the fact that the applicant was not legally represented in these proceedings.
My own reading of the Tribunal decision and supporting documents is that there is no other jurisdictional error not referred to by the applicant or the first respondent that I can discern. I am satisfied that no jurisdictional error has been made out and the decision is therefore a privative clause decision as defined in sub-s.474(2) of the Migration Act. Because it is a privative clause decision it is not subject to orders in the nature of certiorari or mandamus and the application must be dismissed.
There is an application for costs on behalf of the first respondent minister. The applicant has been wholly unsuccessful in his claim and I see no reason why I should not make a costs order. The amount sought is $5,000.00 and in my view that is an appropriate amount.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 18 December 2006
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