SZJBE v Minister for Immigration
[2006] FMCA 1499
•9 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJBE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1499 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China because of the Chinese one child policy – interlocutory dismissal of show cause application – no arguable case disclosed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A |
| Minister for Immigration v Al Shamry (2002) 110 FCR 27 SAAP v Minister for Immigration [2005] HCA 24 SZECD v Minister for Immigration [2006] FCA 31 SZFBJ v Minister for Immigration FMCA 1472 SZGNY v Minister for Immigration [2006] FMCA 1142 |
| Applicant: | SZJBE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1932 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 9 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2006 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondents: | Mr A Carter Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, pursuant to 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 |
SYG1932 of 2006
| SZJBE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was made on 5 June 2006. The applicant sought review of it on 12 July 2006. In that application he asserted notification of the RRT decision on 29 June 2006. On that basis I find that the application was made within time. 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 because of the Chinese one child policy. The background to the applicant's protection visa claims and the RRT decision on them are set out in paragraphs 2 through to 5 of the Minister's written submissions filed on 4 October 2006. I adopt those paragraphs as background for the purposes of this judgment:
The applicant claimed that he farmed a plot from which he earned 1,200 RMB per month which was insufficient to support his family. He claimed that under the one child policy, being a farming family, his family were allowed only two children. However, his wife became pregnant with a third child. She hid most of the time in the house and did not emerge until after the birth in 2004. He claimed that the authorities fined them 30,000 RMB which they were unable to pay, and the birth control authorities came to their home, damaged and stole property. In June 2002, Communist Party officials detained him briefly for criticising the government and he was physically abused and publicly humiliated: court book, pages 17-18.
The applicant attended a hearing before the RRT on 26 May 2006.
The RRT found that the applicant lacked credibility and that his claims could not be accepted because his evidence was inconsistent, contradictory and implausible: court book, pages 75.5.
The RRT concluded that it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution: court book, page 76.7. These findings of fact were open to the RRT on the evidence before it. No jurisdictional error is revealed in this approach.
When this matter first came before me on 9 August 2006 it was not apparent to me whether the application raised an arguable case.
For that reason I ordered that the matter be listed for a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) today. I also made orders for the filing and serving of affidavit evidence including any transcript of the RRT hearing and any amended application. The applicant has not sought to file any additional affidavit evidence and no transcript has been produced. He did file an amended application on 20 September 2006, which repeats with particulars to ground 3 of his original application. Despite some additional uncertainty this morning, the applicant ultimately decided to continue to rely on grounds 1, 2 and 4 in his original application, in addition to ground 3 as detailed in his amended application. He also relies upon his affidavit filed on 12 July 2006 which simply repeats grounds 1 and 2 of his original application and annexes the RRT decision.
The only evidence I have before me of what occurred at the RRT hearing is in the court book filed on 27 July 2006. Although ground 1 in the original application asserts bias, there are no particulars of that allegation. Neither is there any evidence to support the allegation. There is nothing in the court book to lend any support to it. I conclude that the first ground is not arguable.
Ground 2 asserts a breach of s.91R of the Migration Act 1958 (Cth) (“the Migration Act”). I understand that a breach of s.91R was identified in relation to the first Tribunal hearing in this matter and that is why a second Tribunal hearing was required. However, s.91R did not figure at all in the second Tribunal decision. Neither was it necessary for that section to be considered by the second Tribunal. The decision turned simply on an assessment of the applicant's credibility. Ground 2 is not arguable.
Ground 3 asserts that the RRT did not refer to sufficient independent information for the consideration of his application. I find that that ground also is not arguable. Having rejected the applicant's claims as not credible there was no need to refer to any independent information. In any event, the RRT was not required to look for information to reject the applicant's claims. It was required to seek to achieve a state of satisfaction or dissatisfaction with his claims on the basis of the available information. That is what it did.
The remaining ground is an asserted breach of s.424A of the Migration Act as particularised in the amended application. The applicant asserts that the RRT was required to give notice under s.424A(1) of the information it would rely upon derived from the first Tribunal hearing. The Minister's submissions on this issue are set out in paragraphs 6 through to 10 of the Minister's written submissions as follows:
The applicant served an amended application on 20 September 2006. The sole ground pleaded is that the Tribunal failed to carry out its statutory duty. It also quotes paragraphs from the cases of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27 without properly indicating why those cases are relevant to this application.
The Tribunal rejected the applicant’s claims on the basis of inconsistencies between his evidence to the differently-constituted Tribunal and the re-constituted Tribunal. The Tribunal relied on the fact that the applicant failed to mention his detention in 2002 to the re-constituted Tribunal to reject his claim to have been detained for expressing his political opinion: CB 75.7.
The Tribunal rejected the applicant’s claims to fear persecution on the basis of the one child policy because of the applicant’s inconsistent evidence about the fine that was imposed and the confiscation of his land: CB 75.8-76.4. It found that the applicant’s evidence varied constantly during the hearing and that his demeanour gave the impression of a person attempting to come up with answers spontaneously without any real history: CB 76.5.
The Tribunal relied on the evidence given by the applicant at the first Tribunal hearing on 17 November 2004 and the second Tribunal hearing on 26 May 2006. This evidence falls within the exclusion in s.424A(3)(b) of the Migration Act 1958 (Cth) (“the Act”) because it was given to the Tribunal for the purposes of the application. Accordingly, there was no obligation on the Tribunal to provide the applicant with particulars of the evidence given at the first Tribunal hearing, in writing, pursuant to s.424A of the Act. However, as a matter of fairness, the Tribunal did raise these issues with the applicant at the hearing and allowed him an opportunity to respond. The Tribunal was ultimately not persuaded by the explanations proffered by the applicant for the inconsistencies in his evidence.
The Tribunal did not commit any jurisdictional error in its assessment of the applicant’s claims. The Tribunal was not satisfied as to the credibility of the applicant’s claims. These were findings of fact were open to the Tribunal and no error is apparent in the way the Tribunal arrived at those findings.
The question is whether the applicant's assertion is arguable notwithstanding those submissions. In SZECD v Minister for Immigration [2006] FCA 31 at [32], Bennett J ventured the opinion that a failure to disclose information derived from the reasons of an earlier tribunal decision might constitute a breach of s.424A.
Her Honour's comments appear to have been obiter in the context of that case. In SZFBJ v Minister for Immigration & Anor [2006] FMCA 1472 I distinguished her Honour's comments from the facts of that case which were materially the same as in this case. There is a clear difference in my view between a tribunal's reasons for its decision and evidence given to a tribunal for the purpose of its decision. In SZFBJ I relied upon the decision of Smith FM in SZGNY v Minister for Immigration [2006] FMCA 1142, in particular at [21]. I adopt the same view in this case. Having decided the issue in indistinguishable proceedings on a final basis in SZFBJ I do not consider that the issue remains arguable. No other jurisdictional error is apparent to me.
Accordingly, I find that the applicant has failed to demonstrate an arguable case. I will order that the application be dismissed pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs. The applicant was concerned to clarify his rights of appeal but did not wish to be heard on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, including any reserved costs, in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules in the sum of $2,500.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 October 2006
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