SZJGX v Minister for Immigration
[2007] FMCA 1604
•26 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJGX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1604 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. Judiciary Act 1903 (Cth), s.39B |
| Applicant: | SZJGX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2408 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 20 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the First Respondent: | Ms SA Sirtes |
| Solicitors for the First Respondent: | Ms M Mafessanti of Clayton Utz |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 29 August 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2408 of 2006
| SZJGX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings:
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) ("The Act"), and has been given the pseudonym SZJGX.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney registry of the Federal Magistrates Court of Australia on 29 August 2006 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was made on 27 July 2006 and the notification letter was forwarded to the applicant on 17 August 2006. The Tribunal decision affirmed the decision of a delegate of the first respondent made on 17 October 1997, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for a final hearing.
A Court Book ("CB") prepared by the first respondent's solicitors was filed on 27 September 2006. I have marked it Exhibit "A" and it was read into evidence.
Background:
The Tribunal decision of G Short, reference 060377952, contains the following background information.
This is a review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 17 October 1997 refusing an application by the application for a protection (Class AZ) visa. The file of the Department of Immigration & Multicultural Affairs containing the Applicant's original application and associated documentation is either missing or lost, but it is presumed to be absent of evidence to the contrary that the applicant was notified of the decision by letter in around October 1997. The Applicant did not lodge an application for review with the Tribunal until 26 April 2006.
Ordinarily, this would mean that the Applicant's application for review was not valid because it was not made within the period prescribed for the purposes of para.412(1)(b) of the Migration Act 1958 (the Act). However, because the date in which the applicant is presumed to have been notified of the decision, it is assumed, in the absence of evidence to the contrary, that the letter notifying the applicant was affected by the same error identified by the Federal Court in Srey v The Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308, namely that it did not correctly state the time within which an application for review of the decision could be made (as required by sub‑para.66(2)(d)(ii) of the Act, because it relied on the deeming period of receipt of the notice calculated in accordance with the regulation 5.03 of the Migration Regulations as enforced prior to July 2000 which was held to be invalid in The Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77. Since the applicant was never validly notified of the decision made on 17 October 1997, it follows that time did not begin to run against him, and I am therefore satisfied that the Tribunal has jurisdiction to review the decision refused in the Applicant's application.
The Applicant is a citizen of the People's Republic of China. He arrived in Australia in April 1997 and applied for a protection (Class AZ) visa on 17 April 1997.(CB 69)
The Tribunal decision contains the following summary of the applicant's claims of persecution under the subheading "Claims and Evidence":
Because a Department’s file was either missing or lost, the Tribunal had invited the Applicant to provide information about his reasons for claiming to be a refugee. It had suggested that he might wish to do this by filling out a standard application form for a protection visa, which the applicant duly did. In that form and in the accompanying statement (translated from Chinese) the applicant said that his name was [SZJGX] born on 26 June 1973 in Fengcheng Lianjia County in Fujian province. He said that he had been discriminated against since childhood because he was born to a landlord family. He said all his grandfather's assets had been taken away during the land reform period and during the Cultural Revolution his father had been interrogated and tortured.
The applicant said that he had been forced to work in the countryside after he had completed junior high school. He said that as a result he had a deep hatred towards one-party authoritarian rule, the Chinese Communist Party. He said that he has secretly listened to Voice of America and Radio Taiwan when he had been studying, and he had acquired some knowledge of democracy, freedom and human rights. He said that it had been in order to escape the authoritarian rule of the Communist Party and to find freedom that he had bought a false passport with a visa in it and had visited Australia in April 1997.
The Applicant said that he feared that he would be persecuted if returned to China because he had provided "rights-protection, information, and information on promoting democratic ideas and democracy movement organisations to rights protection organisations and democratic activities in China", and had listened as a "subject of surveillance" by the police in China.(CB 71-72)
The written submissions prepared by Ms Sirtes, for the first respondent, contains a summary of the Tribunal decision. I adopt paragraph 7 of those submissions for the purposes of this judgment:
(7) The Tribunal:
(a)assessed the applicant's claims in relation to his being from China;
(b)Overarchingly rejected the applicant's claims as fabrications and based its decision on an adverse credibility finding against the applicant (CB 77.7);
(c)accepted that the applicant had limited education however found that this did not explain his limited level of knowledge concerning the information he claimed to have sent to his cousin (CB 77.2 to 77.4)
(d)did not accept the applicant's claims to have participated in pro-democracy activities before departing China, on the basis of the view it formed as to the veracity of the applicant's evidence at the hearing (CB 77.6);
(e)similarly, rejected the applicant's claims to have been discriminated against for having been born into a "landlord family", or the alleged persecution which the applicant claimed he and his family suffered as a result thereof (CB 77.9);
(f)rejected the applicant's claims that he had come to Australia to escape authoritarian rule of the Communist Party. In doing so, the Tribunal did not accept that:
(i) the applicant needed to purchase a passport in a false name, but did so for no other reason than to gain a migration benefit to which he would otherwise not have been entitled;
(ii)the applicant had ever come to the attention of the Chinese authorities before he departed China;
(iii)the applicant genuinely held political opinion opposed to the Chinese Communist Party as claimed;
(iv)there was a real chance that the applicant would participate in future pro-democracy activities in defence of human rights in China;
(v)the applicant would face a real chance of persecution by Chinese authorities for reason of his real or imputed political opinion. (CB 78.1-78.3);
(g)was not satisfied overall that the applicant had a well founded fear of persecution for a Convention reason in China, and therefore, found that the applicant was not a person to whom Australia owed protection obligations (CB 78.4).
Application for Review of the Tribunal Decision
On 29 August 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with orders made at the first Court date, the applicant filed an amended application on 15 November 2006 setting out the following grounds:
(1)The second respondent has failed to comply with s.424A of the Act, and thereby committed jurisdictional error of law.
(2)The first respondent concession that the decision of the Tribunal is affected by jurisdictional error in that it did not comply with its obligation to put adverse information relied upon as part of the reasons for the decision to the applicant for comment in accordance with s.424A of the Migration Act 1958 (Cth), having regard to the Full Court of the Federal Court decision in SZEEU v MIMIA [2006] 150 FCR 214.
(3)Regarding the other issues raised from the Tribunal decision, it is obviously ill informed without any substantial evidences accepting its erroneous findings based.
Submissions and Reasons
The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. He confirmed that although he had filed an amended application, he had not prepared written submissions prior to the final hearing. The applicant indicated that he would rely on his amended application. When invited to make oral submissions, he indicated that the Department had lost his file which contained his original visa application and that this was noted in the Tribunal decision.(CB 71) The Tribunal wrote to the applicant on 31 May 2006 advising him that they could not locate his file. It invited the applicant to provide information in his possession which would assist in its decision-making process. The applicant obliged by forwarding various documents to the Tribunal.
When the applicant raised this issue in oral submissions, I indicated that the Tribunal had been able to assemble the vast majority of the relevant documents, and this was evidenced by the material that had been reproduced in the Court Book. The applicant was unable say what detriment he suffered as a result of the misplaced file. Nor is it apparent, on independent assessment of the Departmental files, to determine what detriment the applicant suffered.
The applicant also complained that the Tribunal declined to accept a letter from him at the conclusion of the hearing. The letter was written in Mandarin and did not attach an English translation. The applicant conceded that the contents of the document were discussed with the Tribunal member through an interpreter present at the hearing. The applicant has not filed a hearing transcript, or tapes of the hearing.There has also been no attempt to file any affidavit material in support of the claims.
The Tribunal decision refers to this letter under the heading "Claims and Evidence":
I asked the applicant if there was anything further you wished to add before I close the hearing? He referred to a letter that he had received from his parents which he said mentioned that his cousin and his cousin's friend had been arrested and asked him to try to stay away, because if returned he would definitely be sentenced. He said that his parents had written that they were quite old now, that they could only depend on him, and if he was safe this would put their minds at rest.(CB 76)
In respect of the first and second grounds, Ms Sirtes submits that there is no breach of s.424A(1) of the Act, as any information relied upon by the Tribunal in the course of its decision comes within s.424A(3). It is submitted that that must be particularly so, as the Tribunal did not have before it the original protection visa application. Rather, the applicant made his claims afresh, and responded to a request for information issued by the Tribunal. Accordingly, the entirety of the applicant's claims fall within the exception in s.424A(3)(b). Further, the Tribunal did not rely on independent country information the course of its decision and, consequently, neither s.424A(3)(a) nor s.424A(3)(c) has any application.
Ms Sirtes refutes the allegation that a s.424A error has been conceded and reiterates there is no s.424A error manifest in the Tribunal decision.
I accept the submissions made by Ms Sirtes in relation to the first and second grounds and agree that there is no error as alleged in these grounds.
Ms Sirtes submits that the third ground expresses the applicant's dissatisfaction with the Tribunal decision, which is not a basis for review, nor a ground which founds jurisdictional error. She submits that the ground appears to seek impermissible merits review, which is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ; NAHI vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412 at 420 per Mason CJ; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40-42.
Ms Sirtes further submits that the Tribunal decision was not ill-founded or made without substantial evidence. The Tribunal's findings turned upon its assessment of the credibility of the applicant, which is a matter for the Tribunal. Similarly, Mr Sirtes submits that the factual findings of the Tribunal were open to it on the evidence before it, which, furthermore, constituted exclusively of the applicant's own evidence. Even if those factual findings are ultimately incorrect, a mere error of fact does not, in and of itself, give rise to an error of law: MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28]; Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs 2005 FCAFC 8 at [31] per Finn, Marshall and Mansfield JJ; NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 per Grey, More and Weinberg JJ at [37].
I agree with the submissions made by Ms Sirtes in respect of
the third ground. This ground cannot be sustained and should be dismissed.
When the applicant was invited to reply to any issues from the written or oral submissions of Ms Sirtes, he again referred to the letter that he wished the Tribunal to accept at the end of the hearing. This is referred to at [11] above. This letter was discussed with the applicant. I am satisfied that the Tribunal has considered its contents as explained by the applicant through the interpreter, and has dealt with it appropriately. The Tribunal made its decision based on credibility, and gave the contents of that letter relevant weight as part of its decision-making process. No error has been identified in respect of the way the Tribunal dealt with the letter.
The Tribunal’s rejection of the applicant’s claims on the basis of a credibility finding is a matter for the Tribunal par excellence: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J:
[67]…a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
I am satisfied that the Tribunal’s findings in this respect were open to it on rational grounds on the material before it and that no error is disclosed on its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. The Tribunal decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicates the concerns that it had in relation to aspects of the applicant’s evidence was raised with him during the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, the finding that he was not credible.
Each of the applicant’s claims is dealt with in the Tribunal’s “Finding and Reasons”:
In the present case, as referred to above, the Applicant claims to be wanted by the authorities in China because he sent ‘right-protection information on promoting democratic ideas and democracy movement organisations’ to his cousin, Zheng Xianghua, and other people in his cousin’s organisation. At the hearing before me he was vague as to the nature of this information apart from mentioning newspaper articles, books and CDs about the persecution of Falun Gong practitioners in China. He said that he believed that there were correct or proper methods or legal procedures for organising pro-democracy movements in China and he reiterated this belief even after I had reminded him that there was only one legal party in the People’s Republic of China, the Chinese Communist Party.
I accept that the Applicant does not have much education but he claims to have acquired some knowledge of democracy, freedom and human rights by listening to the Voice of America and Radio Taiwan while he was at school and in order to select newspaper cuttings and other material to send to his cousin and other people in his cousin’s organisation he would have had to have some rudimentary idea of what was involved in promoting democratic ideas or defending or protecting people’s rights. Having regards to the Applicant’s evidence at the hearing before me I do not accept that he has the level of knowledge which would enable him to send the sort if information to China which he claims to have done.
The Applicant claimed in the statement which he submitted to the Tribunal that the police officers who had searched his home had reported their findings on him to their superiors ‘as an important enemy spy case and that they had asked some Fujian people living in Australia to keep an eye on him and to report back to them (which he said was also what he had meant when he had said that he had been listed as a ‘subject of surveillance’ by the police in China). However it was apparent at the hearing before me that these claims were supposition at best. Having regard to the impression I formed on the basis of the Applicant’s evidence at the hearing before me I do not accept that he was involved in pro-democracy activities before he left China (even to the limited extent he outlined at the hearing before me), nor that since he has been in Australia he has sent ‘rights-protection information and information on promoting democratic ideas and democratic movement organisations’ to his cousin, Zheng Xianghua, and other people in his cousin’s organisation. I do not accept that his cousin Zheng Xianghua and his cousin’s friends were involved either before 1997 or subsequently in pro-democracy activities or protests against the Government, nor that the Applicant’s cousin was arrested in February 2003 and subsequently sentenced to seven years’ imprisonment for anti-revolutionary or anti-state activities or disrupting economic construction. I do not accept that the authorities in China searched the Applicant’s home in 2003 nor that they want to arrest him because they believe he committed that same as his cousin. I consider that the claims set out in the statement which the Applicant submitted to the Tribunal are a fabrication.(CB 77)
After considering each of the issues, the Tribunal formed the view that the applicant’s claims were not credible and rejected them. I am satisfied that the Tribunal performed that analysis according to the requirement set out in Durairajasingham.
Conclusion
I am satisfied that none of the grounds contained in the amended application can be sustained; nor is it apparent from the face of the decision or contents of the Court Book that any jurisdictional error occurred. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made. I order that the applicant pay the first respondent’s costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 26 September 2007
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