SZJEU v Minister for Immigration
[2007] FMCA 491
•2 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJEU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 491 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A; 424A(3); 474; pt.8 div.2 |
| Applicant: | SZJEU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2213 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 April 2007 |
| Date of last submission: | 2 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2007 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Counsel for the Respondent: | Ms A. Mitchelmore |
| Solicitors for the Respondent: | Ms B. Rayment, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2213 of 2006
| SZJEU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 June 2006 and handed down on 13 July 2006.
The applicant is a national of the People's Republic of China (“the PRC”) and arrived in Australia on 27 July 2005. On 8 August 2005 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).
In his protection visa application the applicant claimed that he was a Christian and could not enjoy freedom of religion in the PRC. The applicant claimed that in September 2004 he was accused by authorities in the PRC of being a member of an unregistered church and was detained for two weeks on suspicion of being a spy with a close relationship with overseas churches. The applicant claimed that he was tortured during the two weeks he was detained and afterwards lost confidence and suffered from depression.
On 22 September 2005 a delegate of the first respondent (“the Delegate”) refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees' Convention as amended by the Refugees' Protocol (“the Convention”).
On 13 October 2005 the applicant lodged an application for review of the Delegate's decision by the Tribunal. The applicant provided no further material in support of that application. The applicant attended a hearing before the Tribunal on 23 June 2006 at which he gave evidence. The applicant disavowed the statement made by him in support of his protection visa application stating that it had been typed by a university student and whilst he had a general idea of what it contained, it was not read back to him.
The Tribunal noted that the applicant stated that he was not a Christian, had no interest in Christianity and did not fear being persecuted in the PRC. The Tribunal noted that the applicant stated he wanted to earn some money in Australia and then go home because he missed his children.
The Tribunal then explored various matters with the applicant and, in conclusion, it asked him if there was anything else about his situation that he wished to tell the Tribunal. The Tribunal noted the applicant's response, that the applicant really wanted to go back to the PRC and was not really afraid of being persecuted. He just wished to earn money here and that, when he had enough, he would definitely go back.
The Tribunal found the applicant to be a truthful witness. The Tribunal noted the applicant's evidence in relation to the Christian practices of his family. The Tribunal also had regard to independent information before it about the treatment by the authorities of Christians in the applicant's home town.
The Tribunal noted that despite the applicant's father being a Christian, in accordance with the applicant's evidence, his father had been able to continue living at the family home, running a successful business and conducting religious gatherings at his home without any further problems with the authorities for the past three years. The Tribunal noted that in the circumstances it inferred that the applicant's father's activities were considered so minor that the police had no continuing adverse interest in them.
The Tribunal also noted the applicant's evidence that he was not having any serious problems with the authorities before he came to Australia and that the only difficulties he had had with police occurred two years before he left his home town. Based on that evidence the Tribunal found that the issues that brought the applicant to the attention of the police two years ago were resolved and the police had no further adverse interest in the applicant because of his father's religious activities.
The Tribunal concluded that the applicant did not have a well-founded fear of Convention related persecution when he left the PRC for Australia. The Tribunal also had regard to the applicant's evidence that he had paid a considerable sum to an agent in a government run travel agency for the purpose of getting the visa on which he travelled to Australia and that, because that man has since been arrested, the applicant was fearful he may face some penalty or punishment as one of the people from whom the agent accepted corrupt payments.
The Tribunal accepted that corruption amongst government officials is widespread in the PRC and that there are “periodic, largely ineffective or cosmetic, official crackdowns against it.” However, the Tribunal found that the applicant's evidence was no more than speculation that authorities may know that he had paid a bribe to the agent and noted that, even if the authorities knew of the payment, that any punishment the applicant may face would not be Convention related.
The Tribunal noted the applicant's wish to work in Australia, save some money and return home and that he did not fear being persecuted in the PRC. The Tribunal found that the applicant has no subjective fear of persecution in the PRC and, accordingly, was not a person to whom Australia has protection obligations under the Convention.
On 11 August 2006, the applicant filed an application in this Court seeking judicial review of the tribunal's decision. On 15 November 2006, the applicant filed an amended application in which he relied on the following grounds:
1. The Tribunal failed to carry out its statutory duty
Particulars
(a) The only information before the Tribunal was that contained in the First Respondent’s file and that was given to the Tribunal by the Applicant.
(b) The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958 s.424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
(c) The above particulars had to be provided in writing SAAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDUSTRIAL AND ETHNIC AFFAIRS (2005) HCA 24 (18 May 2001)
McHugh J.
Para68 “… The assumption that no breach of s.424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the decision. Nothing in the section suggests that fairness in the way in which the Tribunal observes it (sic) statutory obligations is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case. Further, the, mandatory nature of the obligation in s.424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s.424A..”
para 77 “… If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function… it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act… a decision made after a breach of s.424A is invalid.”
Hayne J
para 180 “I consider that the Tribunal was bound to give the appellants written notice of that information and to ensure, as far as reasonably practicle that the appellants understand why it was relevant to the review. The Tribunal failed to do so constituted jurisdictional error.”
para 208 “… whether (sic) those steps would be judged to be necessary or even desirable in the particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
(d) The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa.
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v AL SHAMRY (2002) 110 FCR 27
para 17 “… In our view, ‘applicant’ wherever appearing in s.424A means ‘application for review by the Tribunal of a ministerial decision’ and ‘application’ correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.”
The court did not accept the Ministers argument that “Application” in the context was said to mean “all information given by the applicant to officials in the department (including that provided to the Tribunal) for the purposes of determining whether to grant a protection visa to the applicant.”
(e) The Tribunal based it’s findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by S.424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.
2. The Tribunal satisfaction that I am not a refugee was not based on rational and logical foundation for this belief.”
The grounds in the application and the amended application are formulaic of general assertions of error unsupported by particulars or evidence and of a kind regularly seen in this Court.
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter. The applicant made no meaningful submission in support of any of the grounds, save to refer to s.424A of the Act. The provisions of that section were explained to the applicant and he was invited to identify the information that he alleges was part of the reason for the Tribunal affirming the decision under review and was information otherwise not excluded by s.424A(3) of the Act. The applicant was unable to identify any such information.
At the heart of the Tribunal's conclusion is its finding that the applicant has no subjective fear of persecution in the PRC. That finding is based solely on, and is consistent with, the evidence of the applicant and, in the circumstances, was open to the Tribunal on the evidence and material before it. There is no other statutory duty with which the Tribunal failed to comply in the making of its decision, including the conduct of its review.
The applicant alleges that the decision was not based on rational and logical grounds. That allegation, as stated earlier, is unsupported by particulars. There is nothing on the face of the decision to suggest that the decision was not based on rational and logical grounds. The findings and conclusions of the Tribunal were open to it on the evidence and material before it and for which it gave reasons. The Tribunal accepted the applicant as a witness of truth and, based on his own evidence, found that the applicant did not have a subjective fear of persecution in the PRC.
The Tribunal's conclusion, that the applicant is not a person to whom Australia has protection obligations under the Convention, was open to it on the evidence and material before it and for which it provided reasons. There is no jurisdictional error in the Tribunal's decision, including the conduct of its review.
In the circumstances, the Tribunal's decision is a privative clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
RECORDED : NOT TRANSCRIBED
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 16 April 2007
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