SZIYF v Minister for Immigration

[2006] FMCA 1295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIYF v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1295

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958, ss.91R, 424A

Applicant: SZIYF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1705 of 2006

Judgment of: Driver FM

Hearing date: 4 September 2006

Delivered at: Sydney

Delivered on: 4 September 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K McNamara
Phillips Fox

INTERLOCUTORY ORDERS

1. The application is dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 of the Federal Magistrates Court Rules 2001 (Cth), in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1705 of 2006

SZIYF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”).  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of persecution based upon his use of a Falun Gong book.  The decision of the RRT was signed on 28 April 2006 and notified to the applicant by letter dated 18 May 2006.  The applicant asserts notification of the decision on 29 May 2006.  His show cause application was filed on 15 June 2006. I am satisfied that that application was filed within time.

2. When this matter first came before me on 12 July 2006, it was not apparent to me whether the application disclosed an arguable case. 

   
   

   I made orders for a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) today and I also made orders for the filing of additional material. The Minister has filed a court book on 19 July 2006.

   
   

   I received that as evidence for the purposes of today’s hearing.  I also received two affidavits by the applicant filed on 12 July 2006 and 28 August 2006.

3. The applicant now relies upon an amended application filed on 28 August 2006. That application raises two grounds, namely a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) and also a breach of s.91R of the Migration Act. The particulars of the asserted breach of s.424A are that the RRT found the applicant’s name could not have been a late addition to the list of names given to the Australian organisers of an expo attended by the applicant by inferring from evidence associated with his protection visa application that the applicant’s name was on a list sent to the Australian embassy on

   
   

   12 August (court book, page 128 at about point 7). Further, the applicant asserts that the s.424A letter, dated 29 March 2006, sent to the applicant, simply warned that[1]:

   If the Tribunal were to conclude that you did not pay a bribe to obtain a passport in 2004, it would undermine the credibility of other claims made…

   [1] court book, page 125 at about point 9

4. The applicant asserts that the RRT drew adverse inferences from information not provided by the applicant.  The findings by the RRT relevant to this ground are set out in the third and fourth paragraphs of the decision on page 128 of the court book:

   Third, in his oral evidence to the Tribunal, the applicant claimed that he bribed his superior to include him in a group travelling to Australia.  He said he bribed that superior on 15 August 2005 (having first said it was in November, and then October 2005), and that he was not originally on the list of those intending to travel to Australia.  His oral evidence was that he had borrowed the Falun Gong book somewhere between 10 and 20 August and that, about three days after borrowing it, found out that its presence in his home had been reported to a teacher.  He said that he bribed his superior a few days after that.

   This is contradicted by the evidence associated with his business visa application.  That evidence shows the applicant’s name was on a list, prepared in Australia, and sent to the Australian embassy on 12 august.  The Tribunal accepts that evidence, and infers from it that the applicant’s name was provided to the Australian organisers of the expo before 12 August 2005.  The Tribunal finds, therefore, that the applicant’s name could not have been a late addition to the list of names as a result of approaches made to a superior following the sequence of events described by the applicant as taking more than three days and initiated by the borrowing of a book no earlier than 10 August 2005.

5. The RRT wrote to the application by letter dated 29 March 2006 to invite his comment on information that might be a reason or part of the reason for affirming the decision under review.  The letter is reproduced on pages 109 to 111 of the court book, and is also reproduced verbatim in the RRT’s reasons from pages 124 to 126 of the court book.  The paragraph of the letter with which the amended application takes issue is the second-last paragraph on page 125:

   In your application for a protection visa, you stated explicitly that you had paid a bribe to obtain a passport.  You contradicted that claim in your oral evidence to the Tribunal.  If the Tribunal were to conclude that you did not pay a bribe to obtain a passport in 2004, it would undermine the credibility of other claims made in your protection visa application forms and accompanying statement of claims.

6. However, the amended application fails to identify the third paragraph in the letter on the same page:

   While your application for a business visa, dated on 15 August 2005, is consistent with your oral claim that you paid a bribe to your superior on 15 August 2005 to be included on the list of those travellers, that claim is contradicted by the evidence of the letter from the exhibition organisers which is dated 12 August 2005.  The inclusion of your name among the list of attendees indicates that, before 15 August 2005, it was intended that you travel to Australia.  The Tribunal could conclude, from the fact that the exhibition organisers were able to include your name on correspondence on 12 August, that the sponsoring company had given the organisers your name some time before that.  The Tribunal could conclude from this that you did not pay a bribe to your superior on 15 August to gain inclusion on the list of those travelling because of fears relating to a Falun Gong book.  While the Tribunal is not currently aware of exactly how much time before 12 August the organisers had your name, it could conclude it was earlier than the alleged discovery of the presence of a Falun Gong book in your home.  Such conclusions, if reached, could further undermine your credibility.

7. That paragraph raises squarely the significance of the information associated with the applicant’s business visa application which the RRT in fact used in its decision. In the face of that explicit disclosure by the RRT, the asserted breach of s.424A is not arguable.

8. The application also asserts that s.91R of the Migration Act was breached, where the RRT did not assess the risk of the applicant facing persecution in China because of his involvement with Falun Gong. The difficulty with that argument is that the RRT found that the applicant’s claim had been fabricated (court book, page 129). Having rejected the applicant’s claims as fabrications, the RRT did not need to consider them any further.

9. I have considered whether any other jurisdictional error may be arguable in this case.  I find that there is no other arguable error. 

   
   

   The documents annexed to the two affidavits relied upon by the applicant for the purposes of today’s hearing do not assist him. 

   
   

   The applicant conceded from the bar table that these were not available to the RRT at the time it made its decision.  

10. Further, the applicant claims that the RRT did not consider the applicant’s conduct in Australia.  The only conduct in Australia relied upon by the applicant for the purposes of his review application was his public resignation from the Communist Party.  The RRT deals with that on page 129 of the court book.  Again, the applicant was not believed.  It appears that, by that point, the presiding member had formed such an adverse view about the applicant’s credibility that nothing further he could have said would have been likely to assist him.  I see no error in the presiding member’s approach.

11. I find that the amended application fails to disclose an arguable case.
    I therefore dismiss it pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.

12. The application having been dismissed, costs should follow the event. Neither the applicant nor the Minister sought to resist a costs order in accordance with the court scale. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 1(b) of part 2 to schedule 1 of the Federal Magistrates Court Rules, being the sum of $2,500.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  12 September 2006