SZJMD v Minister for Immigration
[2007] FMCA 1639
•17 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJMD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1639 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant a citizen of People’s Republic of China claiming a well-founded fear of persecution on the basis of his membership of a social group – homosexuality – no jurisdictional error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.424A, 474 |
| SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 NBKT v Minister for Immigration & Citizenship [2006] FCAFC 195 SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 |
| Applicant: | SZJMD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2857 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 September 2007 |
| Date of last submission: | 17 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2857 of 2006
| SZJMD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application pursuant to s.39B of the Judiciary Act, and Part 8 Division 2 of the Migration Act 1958 for judicial review of a decision of the Refugee Review Tribunal dated 14th August 2006 and handed down on 5th September 2006.
Background
The Applicant was born on 29th August 1964, and claims to be from China and of homosexual orientation. On 16th April 2006 the Applicant arrived in Australia, having legally departed from Shanghai Airport on a passport issued in his own name and a visitor visa issued on 12th April 2006.
On 26th April 2006, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. In his protection visa application the Applicant claimed that he feared persecution by his employer, Government officials, his family, and society in general for his homosexual orientation.
On 12th May 2006, a delegate of the First Respondent 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.
Application for Review by the Refugee Review Tribunal
On 15th June 2006 the Applicant lodged an application for review of the Delegate's decision by the Tribunal. The Applicant provided a written statement in support of the review application. On 14th August 2006 the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
Legislative Framework
Section 65 of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Sub-section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention.
Australia has protection obligations to a refugee on Australian territory. Article 1A(2) of the Convention relevantly defines a refugee as a person who:
Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear; is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to that country.
Sections 91R and 91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 4th June 2006 the Tribunal invited the Applicant to come to a hearing on 8th August 2006. The Applicant attended that hearing and gave oral evidence. The Tribunal noted that it had before it the Department's file, the Delegate's decision record and other material available to it from a range of sources as well as the application for review.
The Applicant gave oral evidence before the Tribunal in which he expanded upon his written claims. The Applicant, when questioned by the Tribunal regarding the suggestion in the Applicant's protection visa application that he and his homosexual partner, a deputy-headmaster at his school with whom he had been found in a "close position" on two separate occasions and for which the pair had received two warnings from the headmaster, had been sent to Australia by the school in order to decide whether they would like to live their lives as homosexuals.
The Tribunal put to the Applicant that this was highly implausible and the Applicant stated that the answer was wrong and claimed instead that he and the deputy-headmaster had been sent to Australia as a bonus for their hard work.
The Refugee Review Tribunal Decision
The Tribunal found that explanation “highly implausible”[1]. The Tribunal said that it did not accept that two adults who had engaged in the conduct of homosexual activity on school grounds on two separate occasions and been reprimanded by the principal with two separate warnings would be rewarded with a paid trip to Australia as a bonus for hard work. The Tribunal found the Applicant's explanation to be totally implausible and gave no weight to the evidence.
[1] See Court Book at page 71
The Tribunal found the Applicant not to be a witness of truth. The Tribunal found the claims of the Applicant to be so implausible, and so inconsistent they appear to have been concocted in an attempt to engage Australia's protection obligations.
Application for Judicial Review
On 5th October 2006 the Applicant filed an application in this Court seeking judicial review of the Tribunal's decision. The Applicant was unrepresented before the Court, although he had the assistance of a Mandarin interpreter. I note the Applicant has also opted to participate in the Panel Advice Scheme.
The Applicant relies on an amended application filed on 30th January 2007. The grounds of the application are expressed as follows:
My name is (name deleted to comply with s.91X of the Migration Act). I was born on 29 August 1964 in Shandong Province, People's Republic of China. I applied for refugee to avoid danger in my original country.
I am a homosexual. I and my colleague have been partners for some years. I and my partner would lose my job if we keep staying together. We are required to change back to normal people if we want to keep our jobs. I am afraid of not finding a job because I will not be able to get a reference.
Furthermore, I will be forced to take mental illness tablets and to spent time in a mental hospital. My family and friends ostracised me too. The education department has visited my family and tried to scare my family just because I am a homosexual.
In Australia everybody is treated fairly and I can stay with my partner together without discrimination. I would like to stay in Australia as a refugee. For the above reasons I am sure that I meet the refugee status.
I know Australia is a real democratic country and it always protects its citizens. Thus, I apply for refugee review and I wish you could make a decision on my benefit.
Submissions by the Applicant
The Applicant attended Court, and told the Court that there were three main points that he wished to make. First, he submitted that the procedure of the Refugee Review Tribunal was “too rough, too simple”, and did not follow the regulations. He submitted that the Refugee Review Tribunal did not give serious consideration to the characteristics of his case.
The Applicant said that his second point was that as a homosexual he was ill-treated in his own country by his work unit, by his family, from the local community, and from local police stations. He said that they gave him a lot of pressure. He was forced into a mental hospital and forced to take medication. The reason for that is that in China homosexuality is not allowed. The attitude of people towards the Applicant is a kind of persecution, he said.
The Applicant told the Court that he had to make a decision that he would go to a free country. Before he came to Australia he did a lot of research. He knew that every year in March there is a large demonstration in Australia which indicates that Australia is a free country. He prepared himself carefully. When he arrived he found a Chinese agent and asked to be allowed to remain in Australia as a refugee.
In the proceedings, however, before the Refugee Review Tribunal, the Applicant claimed that there were problems with the Refugee Review Tribunal and he was disappointed in the proceedings. He submitted that the Tribunal did not consider the enormous pressure he would face if he did return. He said he thought that - he said that it would be impossible for him to live a normal life if he returned to China. He referred to the difficulties sustained by Falun Gong practitioners in China, although in answer to the Bench he claimed that he, himself, is not claiming refugee status as a Falun Gong practitioner. He submitted that Australia is an open country and he would like to live a truly normal life.
The Applicant submitted that the Court should remit his application for review of the Delegate's decision to the Refugee Review Tribunal to reconsider his claim according to law. He said that he did fear returning to China, and he reiterated that if he was forced to return he was afraid that he would be forced to take medication or be forced into a mental hospital. The Applicant submitted that the Court had the power to make a decision to enable him to stay in Australia.
Submissions by the First Respondent
For the Respondent Minister Mr Kennett of counsel submitted that the amended application merely restated the Applicant's claim to be a refugee and expressed his desire to stay in Australia. The amended application did not suggest any error by the Tribunal that could lead to the decision being set aside on judicial review.
He submitted that no error was apparent from the record of the Tribunal's proceedings. The Tribunal tested the veracity of the Applicant's claim at a hearing and was firmly of the view that it just did not believe those claims. Mr Kennett submitted that that conclusion was clearly open to the Tribunal on the evidence and it was entitled to reach the decision it did.
Mr Kennett raised the point that to the extent that the Tribunal's adverse view of the Applicant's credibility was based on inconsistencies between his claims as expressed to the Tribunal and earlier to the Department, that did not give any rise to any obligation under s.424A(1) of the Migration Act.
The claims that the Applicant had made in his visa application were translated to him in full at the Tribunal hearing, and he adopted these claims, or these translations as a true and accurate record of his claims[2].
[2] See Court Book pages 65 to 66
Accordingly, all of the information which gave rise to inconsistency was given to the Tribunal by the Applicant and came within the exception in sub-section 424A(3)(b). In any event, in the light of the decision of the High Court of Australia in SZBYR v Minister for Immigration & Citizenship[3], information which is relevant only to its effect on an applicant's credibility does not give rise to any obligation under s.424A.
[3] (2007) 235 ALR 609 at [17].
In oral submissions Mr Kennett submitted to the Court the only specific complaint that the Applicant made about what the Tribunal had done was that the Tribunal did not give consideration to what pressures that the Applicant would face if he were to return to Chian.
There was no fundamental aspect of the Applicant's case which the Tribunal did not consider. In short, the basis of the Applicant's complaint is dissatisfaction that the Tribunal did not believe the Applicant's evidence.
In oral submissions Mr Kennett referred the Court to the decision in NBKT v Minister for Immigration & Citizenship[4]. The point of this was that to reach a view about whether a piece of information has been given to the Tribunal by an applicant the Court must pay attention to what was actually said.
[4] [2006] FCAFC 195 at [58] – [62]
Mr Kennett further submitted that there may well not need to be a need for the point under s.424A to be dealt with because on reflection he was of the view that the inconsistency in the Applicant's claims was not really a reason or part of the reasons for the Tribunal's rejection of the Applicant's claim[5].
[5] See Court Book pages 70 to 71
In reply the Applicant told the Court that the Refugee Review Tribunal simply not believe the possibility that he would face persecution in China. He submitted that the situation in eastern countries and the cultural background is very different from that that applies in Australia. In Australia, he said, homosexuals are not discriminated against, but in China it is very common. It was for that reason, he believes, that the Tribunal felt some of his claims were not believable.
The Applicant did not understand why the Tribunal formed an adverse view of his credibility; that the Tribunal may have thought that what he said was false. However, he reiterated that in China he had experienced mental harm and physical harm as well. The Applicant said that he would not believe that the Court could guarantee his safety if he were to return to China. He asked the Court to assess his case based on human rights. He said that people should have dignity and freedom.
Conclusions
I informed the Applicant the Court's power to conduct judicial review was the power given to the Court by the law, and specifically the Migration Act 1958.
The Applicant's amended application is in its grounds a restatement of the Applicant's factual claims. It is essentially an invitation to the Court to undertake a reassessment of the merits of the Applicant's claims for a review.
Where there is evidence before an administrative decision-maker - in this case the Refugee Review Tribunal - upon which factual findings and judgments can be made then there is no scope for interference by a Court exercising judicial review. The power to decide factual matters remains with the administrative decision-maker.
It is no part of the function of the Federal Magistrates Court to second guess the Refugee Review Tribunal on matters of fact or judgment. The role of the Court in conducting judicial review is to correct the Tribunal if, and only if, the decision is affected by jurisdictional error; (See the decision of Gyles J in SZHCJ v Minister for Immigration & Multicultural Affairs[6] ).
[6] [2007] FCA 205 at [3]
The Applicant's submissions made orally to the Court related largely to a reiteration of his claims for refugee status. His claim that the Tribunal did not give consideration to pressures that he would face if he were to return to China is at best a claim that the Tribunal failed to consider a part of his claims. Mr Kennett submitted that the Tribunal has not failed to consider any fundamental part of the Applicant's case.
The fact is that the Tribunal did not accept the Applicant's evidence. The Tribunal described the Applicant's entire account as implausible, or highly implausible, or totally implausible. The Tribunal stated that it did not accept that the Applicant was a witness of truth.
It was the Tribunal's rejection of the Applicant's claims that, in my view, was the reason for the Tribunal affirming the decision of the Minister's Delegate not to grant the Applicant a protection visa. I am not of the view there are any issues under s.424A of the Migration Act, and I am certainly not of the view that there is any breach of s.425 of the Act.
The Tribunal invited the Applicant to attend a hearing to give evidence and present arguments. The Applicant attended. The Delegate's decision related to the Applicant's claims to have a well-founded fear of persecution on the basis of his membership of a particular social group, namely that of homosexuals in the People's Republic of China.
The Delegate was not of a view that the Applicant had made out those claims, and similarly, the Tribunal reached that same conclusion. This is not a matter that was decided on any issue that would have come as any surprise to the Applicant or the Applicant would not have been expecting.
There is no failure to provide procedural fairness as required under s.425 of the Migration Act. This is a decision that is entirely about the credibility of the Applicant's claims, and the Tribunal was not satisfied that the Applicant was a credible witness or that his claims were credible. It is for those reasons that the Tribunal affirmed the Delegate's decision.
Whilst I am mindful of the fact that the Applicant is not legally represented, my own reading of the decision of the supporting material does not indicate any arguable case for jurisdictional error. In my view, there is no jurisdictional error.
As the Tribunal's decision is not affected by jurisdictional error, it is therefore a privative clause decision. Under s.474 of the Migration Act this Court then has no jurisdiction to interfere as a private clause decision is final and conclusive.
The application will be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 28 September 2007
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