SZJKR v Minister for Immigration

[2007] FMCA 272

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJKR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 272

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

Migration Act 1958, ss.424A, 425

Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Tin v Minister for Immigration [2000] FCA 1109

Applicant: SZJKR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2733 of 2006

Judgment of: Driver FM

Hearing date: 7 March 2007

Delivered at: Sydney

Delivered on: 7 March 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Johnson
Sparke Helmore

ORDERS

1. The Court directs that the name of the first respondent be amended to the Minister for Immigration and 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, fixed in the sum of $2,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2733 of 2006

SZJKR

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 decision was handed down on 22 August 2006.  The Tribunal affirmed a decision of a delegate of the minister not to grant the applicant a protection visa.  The applicant filed a show cause application in this court on 25 September 2006.  In that application he asserted actual notification of the Tribunal decision on 31 August 2006.  On that basis I find that the application was filed within time. 

2. The background to this matter is otherwise adequately set out in the Minister’s outline of written submissions filed on 28 February 2007.

   
   

   I adopt as background for the purposes of this judgment paragraphs 2 to 5 of those written submissions:

   The applicant, a citizen of the People’s Republic of China (PRC), feared persecution as a member of the underground Catholic Church. The applicant claimed to have helped organise regular gatherings of the underground church and was subsequently warned, threatened and interrogated by the Public Security Bureau (PSB).[1]

   The Tribunal accepted that the applicant attended the Roman Catholic Church in Australia on occasions, but did not accept that the applicant was a genuine Roman Catholic or a member of the Roman Catholic underground Church in the PRC. The Tribunal therefore did not accept that the applicant was, or would be, threatened or harmed by the PRC authorities for the reasons he claimed. The Tribunal rejected all of the applicant’s claims on the basis that it did not accept the applicant as a witness of truth.[2]

   The Tribunal found that had the applicant been a genuine Roman Catholic, he would have been able to tell the Tribunal something about Catholicism and the Roman Catholic Church.[3] The Tribunal also found the applicant’s business trip to Chile was inconsistent with his claims to be in hiding in Shanghai and his return to China was at odds with his claim to fear persecution.[4]

   The Tribunal concluded that it could not be satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.[5]

   [1] court book (“CB”) 23-26

   [2] CB 71.7-71.9

   [3] CB 72.2

   [4] CB 72.4

   [5] CB 72.7

3. I gave orders on 13 October 2006for the preparation of this matter for a final hearing.  I made orders for the filing of additional material.  The Minister filed a court book on 20 October 2006.  That is the only evidence before me for the purposes of this hearing.  The applicant took the opportunity to file an amended application on 21 December 2006.  He did not take up opportunities to file additional evidence or written submissions. 

4. The application discloses three grounds of review. The first is an asserted breach of s.424A(1) of the Migration Act 1958 (Cth) (“the Migration Act”). The particulars to that ground relate to information contained in the applicant’s passport which was used by the Tribunal to support an adverse credibility conclusion. The second ground is an asserted breach of s.425 of the Migration Act. The particulars relate to an alleged inability of the applicant to give oral evidence because of nervousness. The third ground of review asserted is one of a reasonable apprehension of bias. The particulars assert that the presiding member ignored important evidence.

5. None of these grounds of review can succeed. The Tribunal did not breach s.424A of the Migration Act in the manner alleged by the applicant. That is because the passport information relied upon by the Tribunal was presented by the applicant to the Tribunal at the hearing conducted by the Tribunal on 9 August 2006[6]. The information in the passport, therefore, fell within the exception in s.424A(3)(b) of the Migration Act.

   [6] CB 69

6. Secondly, on the available material, there is nothing to support the proposition that the applicant did not have a reasonable opportunity to present his claims and respond to the Tribunal’s concerns at the oral hearing.  The presiding member recites in her reasons for decision at some length the discussion between her and the applicant at that hearing.  The discussion is summarised on page 70 of the court book  The presiding member said:

   The Tribunal told the applicant that it had concerns about his claims; it had difficulty accepting as truthful his claims that he was a Roman Catholic and belonged to the Roman Catholic underground church in China as he claimed as he could not tell the Tribunal about Catholicism/ the Roman Catholic underground church; it had difficulty accepting that he left China because of persecution due to his religion; it considered that it was inconsistent with his claims, namely his claims that he left China because he was persecuted there, that he returned to China after going to Chile in November 2005.  The Tribunal invited the applicant to comment further on these or any matters. The applicant responded, “I am nervous; I cannot recall many things today”.

7. It appears to me that the applicant was seeking to use his asserted nervousness as an explanation for his inability to provide plausible responses to the presiding member’s concerns.  In any event, the presiding member was clearly aware of his asserted nervousness.  The available material does not support a contention, if such is made, that the Tribunal hearing was not a reasonable opportunity for the applicant to support his claims.

8. There is nothing whatsoever to assert the contention of a reasonable apprehension of bias.  The available material satisfies me that the Tribunal was aware of and took into account the relevant material.  Accordingly, I find myself in agreement with the Minister’s submissions on these points.  I adopt paragraphs 6 to 10 of those submissions:

   On 21 December 2006, the applicant filed an amended application in the Federal Magistrates Court. The amended application alleges that the Tribunal failed to comply with ss.424A and 425 of the Migration Act.

   The applicant alleges that the Tribunal breached s.424A of the Act in relation to information about his travel to Chile in November 2005. The applicant provided his passport to the Tribunal, and a copy was retained on the Tribunal’s file. The decision record explicitly states that the travel information appeared in the applicant’s passport produced at the Tribunal hearing.[7] Accordingly, no issue arises in relation to s.424A as the information falls within s.424A(3)(b) of the Act.

   The Tribunal is also alleged to have breached s.424A of the Act in relation to the applicant’s “inability to explain something about Catholicism and the Roman Catholic Church.” The Tribunal found, on the basis of the applicant's unconvincing and vague evidence at the Tribunal hearing, that it could not be satisfied he was a genuine Roman Catholic. The applicant's oral evidence falls within the exception contained in s.424A(3)(b) of the Act. Furthermore, the obligation to provide such information to the applicant for comment pursuant to s.424A does not extend to the Tribunal’s thought processes and subjective assessment of the information.[8] No breach of s.424A of the Act can be established.

   The amended application also alleges that the applicant was deprived of his rights under s.425 because he clearly informed the Tribunal member he was nervous and that his mind was blank. The Tribunal’s record of the hearing confirms that the applicant told the Tribunal this. It also records that the Member reassured the applicant that there was no need to be nervous and he should do his best to answer the questions truthfully. There is currently no evidence before the Court, such as a transcript of the Tribunal hearing, capable of supporting the alleged breach of s.425. It is clear from the Tribunal’s account of the hearing that it had a number of concerns with the applicant’s evidence that it put to him at the hearing and provided him with an opportunity to respond.[9] Without any supporting evidence, this ground must fail. 

   Finally, the amended application alleges that the Tribunal decision included a reasonable apprehension of bias. The applicant has made no attempt to comply with the requirement that this serious allegation be firmly and distinctly made and clearly proved.[10]  In the absence of any evidence, such as a transcript of the Tribunal hearing, this ground cannot be established.  The decision record indicates that the applicant was provided with an opportunity to give evidence and present arguments at the hearing.  The material before the Court does not provide any foundation for a claim that the Tribunal approached the matter with a closed mind or did not conduct its review in good faith.

   [7] CB 71.7

   [8] Tin v Minister for Immigration [2000] FCA 1109.

   [9] CB 70.8

   [10] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J

9. No other jurisdictional error is apparent to me on the face of the record. I find that the Tribunal decision is free from jurisdictional error.  It is, therefore, a privative clause decision and the application must be dismissed.

10. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the amount of $2,900.  The applicant did not wish to be heard on costs.  I have no difficulty in accepting that costs of not less than $2,900 have been properly and reasonably incurred on behalf of the Minister in dealing with this application.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in that amount. 

11. I will also direct that the title of the first respondent be amended to the Minister for Immigration and Citizenship.

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

Associate: 

Date:  12 March 2007