SZJGT v Minister for Immigration - [2006] FMCA 1822

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJGT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1822

MIGRATION – RRT decision – Chinese applicant claiming persecution for political and religious reasons – no arguable case for jurisdictional error by Tribunal – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth), ss.417, 424A(1), 476, 477(1)

Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225
SZIVA v Minister for Immigration & Anor [2006] FMCA 1494

Applicant:

SZJGT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2396 of 2006

Judgment of:

Smith FM

Hearing date:

21 November 2006

Delivered at:

Sydney

Delivered on:

21 November 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr K Sinnadurai

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2396 of 2006

SZJGT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 29 August 2006, which seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 August 1998 and handed down on 25 August 1998. The Tribunal affirmed a decision of a delegate dated 26 September 1997, which refused to grant a protection visa to the applicant.
The Court Book contains documents indicating that the Tribunal’s decision was posted on 25 August 1998 to a migration agent who had assisted the applicant in his original protection visa application and his review application, and also to the applicant at his own residential address.
A letter purporting to be from the applicant, stating the same residential address and carrying a signature in Chinese characters which the applicant admits is his, was sent to the Minister and was received on 20 October 1998. This letter acknowledged the RRT decision and requested ministerial intervention under s.417. The request was refused by the Minister, but a further s.417 request was made by a second migration agent on behalf of the applicant in August 1999 after that agent obtained copies of the RRT file under the Freedom of Information Act 1982 (Cth). The request for those documents is again signed by the applicant with a signature which he admits.
Notwithstanding these events, the applicant in his application filed in this Court states that he did not receive actual notification of the Tribunal’s decision until 25 July 2006. He has not, however, filed sworn evidence verifying this claim, nor explaining how he came to receive the decision so many years later. The evidence before me, therefore, strongly points to this Court lacking jurisdiction by reason of the time limit on its jurisdiction provided by s.477(1) (see SZIVA v Minister for Immigration & Anor [2006] FMCA 1494).
The issue as to the competence of the application has been raised by the Minister in a response filed on 11 October 2006, but this was filed after a first court date in the matter, as was the evidence I have referred to above.
At the first court date held before me on 26 September 2006, the Minister was uncertain whether there was evidence in the Department’s files suggesting actual notification prior to the date claimed by the applicant. The applicant attended, and was assisted by a Mandarin interpreter. I made directions allowing him to file an amended application and any evidence relied upon by 10 November 2006, after giving him an opportunity to obtain free legal advice and a bundle of relevant documents. The applicant has been referred for advice, but has filed no further documents.
The application was listed today for a hearing under r.44.12 to consider whether the applicant’s application raised an arguable case for the relief claimed. The applicant was warned that his application might be dismissed if it did not. As I have indicated, the application was not specifically listed for a hearing on the factual issues going to the Court’s jurisdiction, and I am not confident that the applicant has been given proper notice that factual issues in relation to competence would be addressed and finally determined today.
In these circumstances, I prefer today to address the continuance of the matter under r.44.12, rather than by making final determinations on the question of jurisdiction. There is no doubt that the applicant has been clearly put on notice that the merits of his judicial review application would be considered today by reference to the test provided in r.44.12(1)(a).
This requires me to consider the refugee claims made by the applicant and how they were addressed by the Tribunal.
The applicant’s refugee claims were presented in an attachment to an application for a protection visa lodged on 11 June 1997. In brief, the applicant claims that he and his wife had been persecuted by being fined twice under the Chinese one child policy, when they had a second and third child. He also claimed that he feared persecution by reason of having taken part in the activities of an underground Christian group.
The applicant repeated these claims to the Tribunal when he attended a hearing. In a further written statement he also claimed that he had experienced persecution for political opinions during his service when “he was in the military and posted to an Island on the coast of Fujian from 1979 to 1982”. He claimed that as a result of being accused of spreading antisocial propaganda “he was tried before a military court and sentenced to three years labour in his village under supervision”.
In its statement of reasons, the Tribunal identified these three areas of his refugee claims, and addressed each of them. It had doubts about the truth of his claim to have been persecuted in 1982, but concluded that in any event he had made no claims to have suffered further consequences. The Tribunal could find no basis for concluding that he risked any prospective harm which would constitute persecution by reason of his experiences while serving in the military forces.
In relation to the penalties incurred under the one child policy, the Tribunal also had some doubt about his claims. However, it also held that the feared harm was not Convention‑related, by reason of the reasoning of the High Court in Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225.
In relation to the claim to fear persecution on the grounds of religion, the Tribunal noted that the applicant had told the Tribunal that he had been unable to find a Chinese‑speaking church or Christian community in Sydney during a period of about one year that he had been in Australia. The Tribunal regarded that claim as “inconsistent with his claims to have been so motivated as to have joined a bible study group, studied to become a preacher and sought to proselytise through evangelism in his county in China”. The Tribunal therefore regarded his religious claims to have been “fabricated”. It thought that a person with the level of Christian commitment which it was prepared to accept in the applicant, could practise his faith in China without fear of any negative consequences.
I have considered the reasons of the Tribunal and its procedures and can see no arguable jurisdictional error affecting its decision.
The applicant’s application filed in this Court contains three grounds. The first ground states:
1.The RRT’s concerns were unconvincing and regarded as such by the Tribunal. Certainly those were matter of judgment for the RRT for which it did not require probative evidence and cumulatively resulted in the refusal of my application.
I am unable to discern any ground of jurisdictional error in that contention, and certainly none which is reasonably arguable.
The second and third grounds of the application allege a failure by the Tribunal, which is unparticularised, to follow the requirements of s.424A(1). However, those obligations were not enacted so as to take effect under the Migration Act until a date subsequent to this Tribunal’s decision. Those contentions therefore have no merit.
As I have indicated, the applicant has not filed any amended application nor written submission suggesting jurisdictional error in the Tribunal’s decision. He had no oral submissions before me today to point to any such error.
I am not satisfied that his application has raised an arguable case for the relief claimed, and in all the circumstances I consider it appropriate for me to dismiss his application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 15 December 2006