SZJNL v Minister for Immigration
[2007] FMCA 1993
•28 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJNL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1993 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal complied with s.424A of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 474; pt.8 div.2 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (13 June 2007) |
| Applicant: | SZJNL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2989 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 28 November 2007 |
| Date of last submission: | 28 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2007 |
REPRESENTATION
| Applicant appeared in person with Mandarin interpreter |
| Counsel for the Respondent: | Mr D. Godwin |
| Solicitors for the Respondent: | Ms L. Buchanan, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2989 of 2006
| SZJNL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 31 August 2006 and handed down on 12 September 2006.
The Applicant claims to be from the People’s Republic of China (“China”) and previously a chef (“the Applicant”).
The Applicant first arrived in Australia on 11 December 2002, he departed Australia on 9 January 2003 and arrived again on 17 February 2003, having departed legally from Pudong on a passport issued in his own name and a temporary business visa issued in Beijing and valid until 8 November 2006.
On 25 February 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant lodged a statement in support of his protection visa application in which he claimed a fear of persecution from the authorities in China because of his “dissident opinions and political protest.”
The Applicant stated that his conditions of employment were unfair and “violated against the basic human rights.” He said he spoke publicly against the conditions and drafted an open letter with many signatures to his employer demanding changes to unfair conditions in relation to contracts involving “export labour”. He stated that on 3 January 2002 he was asked by the president of the employer’s company to withdraw his open letter and give a public confession. He stated he was threatened with severe punishment.
The Applicant stated that on 4 January 2002 he maintained his stance in a public statement which resulted in his detention “in a dark room” where he claimed to have been tortured on the order of the president of the company. On 31 March 2002 the Applicant stated he made a public confession in an open meeting and signed a statement of confession. He was then released from detention and dismissed from his job. The Applicant stated that, despite his “excellent cooking skills”, he was unable to find employment.
The Applicant claimed that on 22 May 2002 he took hundreds of copies of his petitions to Quin Dao city where he had a “sit-in protest in the People’s Government”. The Applicant stated that he distributed copies of his petition to the public and gave public speeches, resulting in his detention on 23 May 2002 by the Public Security Bureau (“PSB”) and was “denounced to disturb normal social order”. The Applicant stated that he was released at the end of September 2002 and decided to leave China. He stated that, prior to leaving China, he “drafted hundreds of anti-communist materials which had secretly sent to Beijing, Shanghai, Tianjin, Jinan, and even Guan Gzhou”.
Shortly thereafter, the Applicant stated that he came to Australia, however, stated that his poor English made it difficult for him to survive and he returned to China.
The Applicant stated that upon his return to China a friend informed him that the PSB were planning to arrest him because of his distribution of “many anti-government propaganda materials”.
On 9 May 2003, a delegate of the First Respondent (“the Delegate”) 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 (“the Convention”).
On 23 May 2003, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. The Applicant provided a further statement in support of his review application in which he expanded upon his earlier claims.
On 23 February 2004, the Refugee Review Tribunal, earlier constituted, affirmed the decision of the Delegate not to grant a protection visa.
On 24 March 2006, Federal Magistrate Driver remitted the matter back to the Tribunal for determination according to law.
On 31 August 2006, the Refugee Review Tribunal, differently constituted, (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
On 16 October 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) 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.
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 as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
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 it.”
Section 91R and s.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 18 July 2006, Applicant attended a hearing before the Tribunal and gave oral evidence.
The Tribunal noted that it had listened to the tapes of the earlier Refugee Review Tribunal hearing. The Tribunal summarised what it understood to be the “essential aspects of the applicant’s claims and evidence” at that hearing.
The Tribunal identified independent evidence relating to the human rights situation in China and the serious mistreatment that can be dealt to people accused of stirring dissent in China. The Tribunal noted that the Applicant’s passport issued in November 2001 in China had not been cancelled, despite his alleged detention for stirring dissent.
The Tribunal also noted that for the Applicant to enter Australia on a temporary business visa, as he did, he must have met the requirements of “viable, continuing business activity deemed to be of some benefit to Australian economy”. The Tribunal noted that the material provided by the Applicant in support of his temporary business visa application was not before the Tribunal.
The Tribunal noted various exchanges it had with the Applicant about his evidence and noted the Applicant’s responses. The Tribunal also noted that it put to the Applicant matters of concern about his evidence and noted his responses.
The Tribunal noted that it wrote to the Applicant on 23 June 2006 pursuant to s.424A of the Act, in which it gave to the Applicant information that formed part of the reason why the Tribunal affirmed the decision under review, explained its relevance and invited the Applicant to comment. In particular, the Tribunal raised the conduct of the Applicant in returning to China, having earlier visited Australia. The Tribunal stated that such conduct suggested the Applicant did not have a subjective fear of persecution in China.
The Tribunal’s letter also raised the issue that the authorities in China did not cancel the Applicant’s passport or intervene in the Applicant leaving, re-entering and again leaving China. The Tribunal’s letter also raised the issue of whether or not the Applicant had provided false information to the Australian embassy concerning his state of employment in order to obtain a temporary business visa. The Tribunal’s letter informed the Applicant that such matters may impact on the Applicant’s credibility.
The Tribunal noted the Applicant’s written response, received on 6 July 2006.
The Tribunal accepted the independent country information before it that China would cancel passports or declare them invalid in respect of individuals expressing individual dissent. The Tribunal found the Applicant not to be a credible witness. The Tribunal found that the Applicant did not apply for a protection visa during his earlier visit to Australia, nor when he had visited Japan. Accordingly, the Tribunal found that the Applicant does not have a subjective fear of persecution by authorities in China.
The Tribunal also had regard to inconsistencies in the Applicant’s evidence about the timeframe when he became of interest to the PSB following his return to China. In light of the inconsistencies, the Tribunal did not accept that the PSB attempted to arrest the Applicant when he returned to China and found that neither the PSB nor any other authority in China was seeking to arrest the Applicant.
The Tribunal did not accept the Applicant’s claims about past persecution because of any imputed political opinion or any other Convention reason.
The Tribunal was not satisfied that the Applicant faces a real chance of persecution should he return to China now or in the foreseeable future.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter.
The Applicant confirmed that he relied on an amended application filed on 7 February 2007. The Applicant was invited to make submissions in support of the grounds identified by him in his amended application, however, the Applicant made no relevant or meaningful submission.
The grounds of the application are expressed to be as follows:
“1. There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
2. There was procedural error in the Tribunal’s decision, constituting an absence of natural justice.
3. The Tribunal failed to comply with its obligations under s.424A of the Act.”
Ground 1 is a bare assertion of error and discloses no ground capable of review by this Court.
Accordingly, ground 1 is not made out.
Ground 2 is supported by particulars. Particulars (a), (b) and (c) essentially are no more than a disagreement with the findings and conclusions of the Tribunal. The particulars restate and expand upon the Applicant’s responses to the Tribunal’s s.424A letter.
Particular (d) alleges that the Tribunal ignored the Applicant’s claims; ignored other relevant materials; misunderstood the Applicant’s claims or made a mistake in fact finding; and failed to give the Applicant an opportunity to comment on a matter. None of these allegations are supported by further particulars and no oral submission was made by the Applicant in support of the allegations.
A fair reading of the Tribunal’s decision makes clear that the Tribunal accurately summarised the Applicant’s claims.
The Tribunal had regard to all information provided to it by the Applicant in support of his review application, including his written and oral responses to concerns raised by the Tribunal about his claims.
A fair reading of the Tribunal’s decision does not suggest that the Applicant was not given an opportunity to comment on a matter. Quite the contrary. The Tribunal put to the Applicant both orally and in writing concerns it had about various aspects of the Applicant’s evidence and his claims generally.
No transcript has been provided by the Applicant in support of his amended application, despite being directed by this Court on 22 November 2006 to file any evidence, including a transcript of a Tribunal hearing, in support of his application for judicial review by 21 February 2007.
The Tribunal considered the evidence and material before it and made findings based on the evidence and material and for which it provided reasons. The Tribunal applied the correct law in reaching its conclusions based on its findings. In the circumstances, the findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
Otherwise, ground 1 seeks merits review, which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10])
Accordingly, ground 1 is not made out.
Ground 2 is supported by particulars which identify “discrepancies” in the Applicant’s evidence as the information alleged to enliven s.424A(1) of the Act. However, internal inconsistencies in evidence do not enliven the obligations of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (13 June 2007) at [18]).
Otherwise, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
Accordingly, ground 2 is not made out.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 28 November 2007
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