SZJEQ v Minister for Immigration

[2006] FMCA 1568

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJEQ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1568

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

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

Applicant: SZJEQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2198 of 2006

Judgment of: Driver FM

Hearing date: 23 October 2006

Delivered at: Sydney

Delivered on: 23 October 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Griffin
Australian Government Solicitor

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, including any reserved costs, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2198 of 2006

SZJEQ

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 a show cause application filed on 10 August 2006. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 21 June 2006 and communicated to the applicant by letter dated 13 July 2006.  The show cause application asserts notification of the decision on 24 July 2006.  On that basis I find that the application was filed within time. 

2. The applicant is from China and had made claims of political persecution.  She claimed that her father had worked for the Kuomintang and that his family was therefore treated as counter‑revolutionist.  She claimed to have suffered because of this official attitude.  She also claimed to have been involved, albeit in a minor way, in the 1989 democratic movement and also to have supported the Tibetan freedom movement and Falun Gong. 

   
   

   She claimed to have suffered mental torment. 

3. The Tribunal had serious credibility concerns about the applicant’s claims especially after conducting a hearing in the matter. 

   
   

   The Tribunal wrote to the applicant on 19 May 2006 under s.424A of the Migration Act 1958 (Cth) (“The Migration Act”) to invite comments on its concerns. The applicant responded in a letter which was received by the Tribunal on 13 June 2006.

4. Notwithstanding the serious credibility concerns held by the Tribunal, the presiding member appears to have accepted much in the applicant’s response to the s.424A letter. Nevertheless, the Tribunal found that, to the extent that the application asserted harm as a result of the Cultural Revolution, the three-decade passage of time since the end of the Cultural Revolution and the available country information made clear that she would not be persecuted if she returned to China because of her family’s involvement in the Kuomintang or the events of the Cultural Revolution.

5. Further, the presiding member found that the harm the applicant claimed to have suffered did not amount to persecution for the purposes of s.91R(2) of the Migration Act. Finally, the presiding member found that the applicant’s behaviour prior to leaving China indicated that, in fact, she did not have any fear of returning there.

6. The applicant now relies upon an amended application filed on 5 October 2006.  That application purportedly raises two grounds. 

   
   

   In fact, a number of issues emerge from the amended application. 

   
   

   The first is an allegation of bias. The second is an allegation of misapplication of s.91R of the Migration Act. The third is an asserted failure by the Tribunal to consider the applicant’s claims. Finally, there is an asserted failure on the part of the Tribunal to understand the applicant’s claims and her response to the s.424A invitation. Some of these assertions are also set out in the applicant’s affidavit filed on

   
   

   10 August 2006.  I received that affidavit as a submission. 

   
   

   The applicant was also given the opportunity to file evidence in support of her application but did not take up that opportunity.  The only evidence I have before me is the book of relevant documents filed on 14 September 2006. 

7. The Minister’s response filed on 4 September 2006 asserts that the application does not raise an arguable case. I understand the Minister maintains that position in relation to the amended application. I agree. The allegation of bias is not supported by any particulars or evidence. There is no substance to it. The allegation of a failure to consider the applicant’s claims must also fail. It is plain, on the face of the Tribunal decision, that the applicant’s claims were considered. The claim that the Tribunal did not understand the applicant’s claims or her response to the s.424A invitation also has no substance. In my view, the presiding member understood those claims and response very well. Even if there had been some misunderstanding, that would not of itself equate to jurisdictional error.

8. The more substantial allegation is that the Tribunal misapplied s.91R of the Migration Act. The terms of that section relevant to the application are set out in the Tribunal decision on page 66 of the court book. The application of the section by the presiding member on page 81 of the court book is somewhat troubling. The applicant claimed to have suffered injury and discrimination. She claimed she was forced to work in the countryside with her parents, that she was referred to as a counter-revolutionist at school, that she was bullied and physically injured, and that she suffered mental torment. She claimed that she was given unpleasant work duties to do. She claimed her husband was talked into leaving her and she became divorced. The presiding member said, in relation to that claimed harm[1]:

   The Tribunal has considered the nature of the harm claimed by the applicant both individually and collectively and without limiting the nature of serious harm to the instances in paragraph 91R(2) of the Act, finds that the harm suffered by the applicant does not amount to serious harm. 

   [1] Court Book, page 81

9. In this regard the Tribunal finds in particular in relation to the applicant’s back injury, stated to be sustained in the 1989 students’ movement, that the applicant stated at the hearing that she obtained a brace for the first time in 2004, some 15 years after the claimed event.  That reasoning does not appear on its face to be terribly persuasive. 

10. I find it somewhat surprising that the applicant’s claims were not dealt with on the basis of adverse credibility findings.  Central to the applicant’s claims was her assertion that she suffered as a member of her father’s family who was an official of the Kuomintang.  If the applicant’s protection visa claims were to be believed[2], her father would have been 9 years of age at the time of the conclusion of the Communist revolution in 1949.  This made the claim appear ridiculous.  At the RRT hearing the applicant sought to escape from that difficulty by stating that she did not know when her father was born, although she had set out a precise date in her protection visa application.  The applicant also demonstrated at the hearing a startling ignorance, not only of Chinese history, but also of all things political. In the circumstances, the approach by the presiding member in not resolving the application on the basis of the obvious credibility problems raised was a very generous one. 

    [2] Court Book, page 4

11. Notwithstanding the doubts that I have concerning the presiding member’s reasoning in the application of the test of serious harm, those do not in my view rise above a contest over the quality of the presiding member’s reasoning. There were, in my view, more than adequate bases for the review application to be rejected. I find that the show cause application fails to disclose an arguable case. Accordingly, I will order that it be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

12. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $2,000.  The applicant did not wish to be heard on that question.  Scale costs in this instance would be $2,500. 
    It is proper for the Minister to seek a lesser amount.  I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $2,000.

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

Deputy Associate: 

Date:  26 October 2006