SZJHD v Minister for Immigration

[2007] FMCA 523

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJHD v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 523

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – Tribunal rejecting claims as fabricated – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.36

Applicant: SZJHD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2441 of 2006

Judgment of: Driver FM

Hearing date: 11 April 2007

Delivered at: Sydney

Delivered on: 11 April 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr C Mantziaris

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The Court directs that the title of the first respondent be amended to the Minister for Immigration & Citizenship.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2441 of 2006

SZJHD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The decision was handed down on 8 August 2006.  The applicant sought judicial review of the decision by way of a show cause application filed on 1 September 2006.  In that application he asserted notification of the Tribunal decision on 11 August 2006.  On that basis I find that the show cause application was filed within time. 

2. The applicant filed an affidavit in support of his application on 1 September 2006 on which he continues to rely.  I received that as a submission.  I likewise received as a submission a second affidavit he filed on 8 November 2006.  The applicant filed an amended application on the same day, 8 November 2006.  In that application the applicant asserted procedural unfairness by reason of poor interpretation at the Tribunal hearing and one-sided questioning. 

3. The background facts relating to the applicant’s arrival in Australia,  his protection visa claims and the Tribunal decision on them are set out in the Minister’s written submissions filed on 29 March 2007.  I adopt as background for the purposes of this judgment paragraphs 2, 3, 4, 6, 7 and 8 of those submissions:

   The applicant claimed that he was a citizen of the Peoples’ Republic of China (PRC) who arrived in Australia on 30 November 2005: court book (CB) 129.

   He lodged an application for a protection visa (class XA) on 11 January 2006: CB 1. The applicant claims that he fears persecution on the basis of his Christian beliefs and membership of a Christian church in China: CB 32ff. 

   The Minister’s delegate refused the application for a protection visa on 31 March 2006: CB 85. The Tribunal affirmed the decision of the Minister’s delegate: CB 144.

   The applicant appeared before the Tribunal at the hearing and gave oral evidence. The Tribunal also had before it the Department’s file CB 146.10.

   The Tribunal made the following findings –

   (a)That it was not satisfied that the applicant was a credible person: CB 151.5.

   (b)That the applicant has fabricated his claims to support the application for a protection visa: CB 151.6.

   (c)On the basis of the credibility finding, the Tribunal rejected a long list of claims made by the applicant. These rejected claims are recorded at CB 151.6–152.5. They include the claim that the applicant obtained a Taiwanese passport in order to avoid the authorities’ attention when leaving China: CB 152.4.

   The Tribunal was unable to be satisfied from the evidence before it that the applicant has a well–founded fear of persecution. The Tribunal found that the applicant is not a person who satisfies the criterion set out in the Migration Act 1958 (Cth) (Migration Act), s.36(2): CB 152.5.

4. I also received as evidence for the purposes of this hearing the affidavit by Zoe McDonald filed on 13 December 2006 annexing a transcript of the hearing conducted by the Tribunal on 4 July 2006, the court book filed on 29 September 2006 and the supplementary court book filed on 4 December 2006 and a letter verifying service of the affidavit by Ms McDonald on the applicant (exhibit R1).

5. I conducted a preliminary hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) in this matter on 27 November 2006. I received a transcript of that hearing this afternoon from counsel for the Minister. I am reminded from the transcript that at the preliminary hearing the applicant pointed out, and the Minister’s representatives confirmed, that the audiotapes of the Tribunal hearing provided to him were defective. I permitted the applicant to give oral evidence of what he recalled from the hearing and in the light of that evidence I ordered the Minister to show cause why relief should not be granted in relation to the assertion of procedural unfairness based on inadequate interpretation at the Tribunal hearing. In the light of rule 44.13(2) of the Federal Magistrates Court Rules, that is the only issue to be resolved at this final hearing. I note, nevertheless, that the Minister in his submissions has elected to deal with all issues arising from the amended application or otherwise.

6. The applicant expressed concern about a number of issues during today’s hearing.  He denied receipt of Ms McDonald’s affidavit and the transcript, notwithstanding the evidence of service, and also stated he had not received the Minister’s written submissions.  The latter assertion is almost certainly true.  The applicant filed a notice of change of address for service on 6 February 2007, although it was not served on the Minister’s solicitors.  Counsel for the Minister confirmed that in ignorance of the applicant’s change of address their submissions had been sent to his former address for service.  I adjourned for a short time while the submissions were read to the applicant by the interpreter. 

7. The applicant also asserted that he had prepared a further submission which he had given to a friend to file.  However, no such submission was on the Court file and my Associate confirmed by a computer search of the Court’s database that there is no electronic record of lodgement of any further submission on behalf of the applicant.  I asked the applicant what was in the further submission and, as best as he could recall, it related to the hearing tapes of the Tribunal hearing.  He reiterated that the hearing tapes were either defective or of poor quality.  As I pointed out to the applicant, however, it did prove possible for Auscript to prepare a transcript of the Tribunal hearing which appears on its face to be complete and unambiguous.  That transcript does not support the assertion of interpretation difficulties at the Tribunal hearing.  It does corroborate that the applicant had extreme difficulty responding to even the most basic questions put to him by the presiding member about his asserted Christian faith.  His inability to provide meaningful answers to the questions put to him was clearly a key factor in the Tribunal making an adverse credibility finding in relation to his claims of religious persecution.  The Tribunal rejected all of the applicant’s claims and found that they were fabricated.  The description of what occurred at the hearing in the Tribunal’s reasons for its decision is corroborated by the transcript. 

8. On the basis of the transcript I find that the applicant has been unable to establish his assertion that the hearing conducted by the Tribunal was not a fair opportunity for him to present his claims and answer questions because of interpretation difficulties. Although, having regard to the Federal Magistrates Court Rules, it is not strictly necessary to deal with the other grounds of review previously advanced and rejected by me at the preliminary hearing, I accept the Minister’s submissions in relation to those claims.

9. The applicant has failed to demonstrate any jurisdictional error in the Tribunal decision.  Neither was there anything in the process followed by the Tribunal leading up to its decision which could vitiate it.  The Tribunal decision is therefore a privative clause decision and the application must be dismissed.  I so order.  I order that the application be dismissed. 

10. The application having been dismissed, costs should follow the event. The Minister sought costs fixed in the amount of $6,200 on a party/party basis. However, as was conceded by counsel for the Minister, those costs included preparation of the transcript which was necessitated, at least in part, because the hearing tapes initially provided were defective. The applicant did not make any submissions in relation to costs that would cause me to depart from the Court scale. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

11. I further direct that the title of the first respondent be changed to the Minister for Immigration & Citizenship.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  16 April 2007