SZJOY v Minister for Immigration

Case •

[2007] FMCA 270

•

27 February 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJOY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 270
MIGRATION – Visa – Refugee Review Tribunal – Protection (Class XA) visa -application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – applicant a citizen of People's Republic of China – claiming fear of persecution for reason of religious belief – credibility a matter for the decision maker.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424, 424A

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 followed.
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 followed.
Applicant: SZJOY
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3142 of 2006
Judgment of: Scarlett FM
Hearing date: 27 February 2007
Date of last submission: 27 February 2007
Delivered at: Sydney
Delivered on: 27 February 2007

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Broderick
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Citizenship.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $2,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3142 of 2006

SZJOY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 12 September and handed down on 26 September 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. 

  2. The Applicant seeks judicial review of the Tribunal's decision. The Applicant has filed an application and an affidavit in support, in which he says that he does not wish to go back to China, and he seeks orders by way of certiorari, quashing the decision made by the Refugee Review Tribunal, and by way of mandamus, requiring the Tribunal to reconsider his application according to law. The application and affidavit were filed at this Court on 27 October 2006.  The Applicant has not filed any other documents in support of his case. 

Background

  1. The background to this matter is that the Applicant is a citizen of the People's Republic of China.  He arrived in Australia on 6 March 2006.  On the 27th of that month he applied for a Protection (Class XA) visa.  A delegate of the Minister refused his application for a visa on 2 May.

  2. On 5 June 2006 the Applicant applied to the Refugee Review Tribunal for a review of that decision. He accompanied his application with a typed two-page statement in which he claimed that he did not think that the delegate looked through his case properly.  He set out details of his history and referred to his church membership, in respect of an underground church known as Huhanpai, that the members of that church meet secretly or twice a week. The church is known colloquially as "The Shouters".

  3. The Tribunal invited the Applicant to attend a hearing on 22 August 2006. The Applicant attended the hearing, accompanied by his migration adviser. He gave evidence with the assistance of an interpreter in the Mandarin language.  He told the Tribunal about how he had obtained a passport and a visa for the Republic of Indonesia.  He said that he had arranged this visa with the help of a person known as a “Snakehead”, which is a common term for a people smuggler.  He arrived in Australia by way of Tokyo.

  4. The Tribunal Member asked the Applicant about his fears in the event that he returned to China, and he told the Tribunal that he was a member of The Shouters and was on the run from the authorities. The Tribunal asked the Applicant a number of questions about his religious beliefs and practices and about what he had done since he arrived in Australia.

  5. The Tribunal noted that the Applicant said that he had not purchased a Bible when he had arrived in Australia, nor had he been to church.  The Applicant said that he could not find a church. The Tribunal consulted independent country information about the origins, beliefs and practices of the Shouters and the Tribunal of the Chinese government.

The Tribunal’s findings and reasons

  1. The Tribunal handed down its decision on 26th September. A copy of that decision appears at pages 89-103 of the Court Book. The independent country information can be found at pages 98-101, and the findings and reasons can be found at pages 101-103. The Tribunal accepted that the Applicant was a citizen of the People's Republic of China but did not accept him as a credible witness. At page 101 of the Court Book the Tribunal had this to say:

    The applicant was not generally credible and the Tribunal does not regard the inconsistencies and other matters stated above as explicable in terms of any difficulty he faces as an asylum seeker.  The Tribunal does not accept the applicant is credible and, consequently, rejects all of his material claims.

  2. The Tribunal went on to say, at page 102:

    The applicant claims to be a Shouter but was unable to provide relevant information during the Tribunal hearing about the beliefs and practices of Shouters.

  3. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason if he were to return to China, and affirmed the decision not to grant the Applicant a protection visa. 

The Application for judicial review

  1. The Applicant seeks review of that decision and asks for it to be set aside.  In his application he sets out three grounds: 

    (1) The Tribunal failed to consider the whole of my case, even the information I provided is insufficient.

    (2) I was a Shouter and was wanted by the PSB when I was in China, whether the Tribunal believe it or not.

    (3) I face a risk of being gaoled if I return to China.

  2. The Applicant did not file any written outline of submissions but attended Court this morning and made oral submissions in support of his case. He told the Court that the Tribunal Member did not think that he was a member of the Shouters. He said that he belonged to an underground church that was not sanctioned by the Chinese government. The Member did not believe him, because he had not attended the local church.  He said that he had no friends and relatives in Australia and was not able to do so.  He said that he could guarantee that what he had said during the Tribunal hearing was the truth. 

  3. The solicitors for the Minister have filed a written outline of submissions, in which they submit that all three of the grounds raised by the Applicant cannot be sustained.  They submit that grounds 2 and 3 are in the nature of merits review - that is, a challenge to the factual findings made by the Tribunal - and merits review is not within the jurisdiction of the Court to conduct.

  4. That submission about grounds 2 and 3 is quite clearly correct. I have explained to the Applicant that the Court cannot reconsider the factual findings made by the Tribunal but considers the application by the Tribunal of the law to the Applicant's case and whether the Tribunal followed the requirements of the Migration Act, in arriving at its decision.

  5. Ms Broderick, for the First Respondent, submitted that the Applicant's ground 1 cannot be sustained either. They submit that the Tribunal considered all of the claims made by the Applicant, both in the statement to the Tribunal and the claims that he made at the hearing.  The Tribunal did not set out the claims made out in the statement submitted to the Department but the Applicant submitted the same statement, with a few minor additions, to the Tribunal; indeed, that was annexed to his application for review. They submit, basically, that there is no basis to the contention that the Tribunal failed to consider all of the information and the claims provided by the Applicant.

  6. I have read through the Tribunal decision carefully.  It appears to me that, as I have pointed out to the Applicant and asked for his comments, this case turned on the Tribunal's assessment of the Applicant's credibility.  The fact is that the Tribunal did not believe the Applicant's evidence.  The Applicant attended the hearing and had the assistance of his migration adviser.  He gave evidence and the Tribunal asked him about his history and about his religious beliefs as a member of the Shouters. Notwithstanding that, the Tribunal did not believe that the Applicant was a credible witness.

  7. Assessment of credibility of a witness is a factual matter, which is entirely within the province of the administrative decision-maker, as has been well set out in the High Court decision in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. In my view, it was open to the Tribunal, on the evidence before it, to form an adverse view of the Applicant's credibility.

  8. The solicitors for the First Respondent also submitted that, to the extent that the Tribunal relied on information concerning the Applicant's non‑attendance at a Christian group in Australia, this was information provided by the applicant to the Tribunal during the hearing, and, therefore, it falls within the exception in sub-s.424A(3)(b) of the Migration Act. In my view, this submission is correct. This was, in my view, clearly information provided by the Applicant at the Tribunal hearing, and the Tribunal has not committed a breach of s.424A of the Act.

  9. The First Respondent also notes that the Tribunal mentioned the date of the Applicant's arrival in Australia, or the arrival information, but submits that this information was not information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review, and referred the Court to the decision of Allsop J in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [216]. In my view, that submission was correct.

  10. The reference to the date of the Applicant's arrival in Australia does not constitute any breach of s.424A. It was not information that formed the reason, or part of the reason, for the Tribunal affirming the delegate's decision. There is no breach of s.424A.

  11. This was a case where there was one issue, which was the Applicant's credibility. The Tribunal was not satisfied that the Applicant was a credible witness, and there was evidence before the Tribunal which permitted the Tribunal to form that view.  In my view, no jurisdictional error has been made out.

  12. I have conducted my own reading of the Tribunal decision, independent of either the Respondent's written submissions or the Applicant's written and oral material. I am unable to discern any arguable case for jurisdictional error not referred to by the Applicant, or not referred to by the First Respondent, for that matter. In my view, there is no jurisdictional error and the decision is a privative clause decision, as defined by sub-s.474(2) of the Migration Act.

  13. Accordingly, under the provisions of sub-s.474(1) of the Act, the decision is not subject to the orders in the nature of certiorari and mandamus that the Applicant seeks.  The application will be dismissed.

  14. There is an application on behalf for costs on behalf of the First Respondent Minister, in the sum of $2,800.00.  In my view, this is a proper case for a costs order in favour of the successful respondent and the amount sought is within the scale provided by the Court Rules.  I propose to make that order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  9 March 2007

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