SZJRM v Minister for Immigration
[2007] FMCA 329
•6 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJRM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 329 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – where applicant did not attend Court for the hearing – application dismissed. PRACTICE & PROCEDURE – Application to proceed with the hearing generally in the absence of the applicant. |
| Migration Act 1958 (Cth), s.474 Federal Magistrates Court Rules 2001, r.13.03A(e) |
| ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 W148/00A v Minister for Immigration (2001) 185 ALR 703, Abebe v The Commonwealth (1999) 197 CLR 510 Minister for Immigration & Multicultural Affairs v Wu Shan Liang [1996] HCA 6 |
| Applicant: | SZJRM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3328 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 March 2007 |
| Date of last submission: | 6 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2007 |
REPRESENTATION
| Applicant: | No Appearance |
| Counsel for the Respondent: | Mr O'Donnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3328 of 2006
| SZJRM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed the decision on 9 October 2006 and handed the decision down on 31 October 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The application was listed for Final Hearing today at 10:00am. The applicant filed an application for review on 14 November 2006. The application came before the Court on its First Court Date, being
4 December 2006, when I made orders by consent making directions for a Final Hearing.
The Applicant attended Court on that occasion and was assisted, not only by a Mandarin interpreter but by a solicitor, Mr David Prince who was assisting applicants on a pro bono basis on that day. I note that the Applicant signed the short minutes of order and I understand that that was done after they were translated to him. The Short Minutes of Order contain these words:
NOTE in the event there is no appearance by the applicant at the hearing, the proceeding may be dealt with and dismissed in the absence of the applicant.
The Applicant filed an amended application on 6 February 2007. The Applicant has not appeared at Court today. A Mandarin interpreter has been made available and has attended Court promptly. The Applicant was called on several occasions. I first mentioned this matter at six minutes past 10 this morning and noted there was no appearance by the Applicant. I stood the matter in the list until 10:31a.m. when again the Applicant was called three times and there was no appearance. No message has been received by the Court that I am aware of, indicating that the Applicant has been prevented, delayed, or hindered in attending Court for any reason of illness or injury or transport emergency.
I understand that the solicitors for the Respondent Minister have not received any message from the Applicant or anyone on the Applicant's behalf indicating that there would be any difficulty in the Applicant attending Court today. The Applicant has just not attended Court and there is no explanation. It is well past the hour of 10 a.m. when this matter was listed for hearing. Mr O'Donnell of counsel who appears for the First Respondent Minister submits to the Court that in the circumstances it is appropriate to deal with the matter under the provisions of r.13.03A(e) of the Federal Magistrates Court Rules.
That Rule permits the Court to proceed with the hearing generally, or in relation to any claim for relief in the proceedings. I am satisfied that it is appropriate that the Court should proceed with the hearing generally. A Court Book has been prepared and it contains the Tribunal decision record amongst other things. I have written submissions from the First Respondent and I have an amended application from the Applicant setting out the grounds upon which the Applicant relies. I propose to deal with this matter on a final basis. I will proceed with the hearing generally.
Background
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 6 July 2005. On 2 August he applied for a Protection (Class XA) visa. That application was refused on 14 November 2005 so the Applicant applied to the Refugee Review Tribunal for a review of that decision. On 3 March 2006 the Tribunal, differently constituted, affirmed the delegate's decision not to grant a protection visa.
The Applicant sought a review of that decision from the Federal Magistrates Court and on 13 July 2006 Driver FM, made orders by consent quashing the decision of the Tribunal and remitting the application to the Tribunal for hearing and determination according to law. The Tribunal then wrote to the Applicant on 10 August advising the Applicant that the matter had been remitted for further consideration. On 16 August the Tribunal wrote to the Applicant and invited him to attend the hearing to take place at 10:30am on
12 September 2006.
The Applicant responded to the invitation indicating that he wished to attend and that he required a Mandarin interpreter. The Applicant did attend the hearing and he gave evidence and was asked questions by the Tribunal. The Tribunal's findings and reasons are set out on pages 89 through to 93 of the Court Book. The Tribunal was satisfied that the Applicant was a national of the People's Republic of China, having sighted the Applicant's passport at the hearing. The Tribunal noted the Applicant's claim that he had been detained and mistreated by security officials on several occasions because he was involved in protests in support of workers' rights directed at various levels of government.
The Tribunal referred to various items of country information, including the United States Department of States Country Report on Human Rights Practice for 2003. The Tribunal did not find the Applicant's oral evidence to be satisfactory. The Tribunal described the Applicant in this way:
He was evasive in relation to numerous issues including the manner in which his protection visa application was prepared.[1]
[1] See Court Book, p.89
The Tribunal then went on to set out reasons why the Tribunal was not satisfied with the credibility of the Applicant's evidence and the conclusion was that the Tribunal was not satisfied that there was any evidence before the Tribunal to support a finding that the Applicant had ceased his activities because of a fear of persecution or that he would wish to resume them if he returned to the People's Republic of China. The Tribunal affirmed the delegate's decision not to grant the Applicant a Protection (Class XA) visa.
The application for judicial review
The Applicant sought judicial review of that decision by filing an application and affidavit on 14 November 2006 and he filed his amended application on 6 February. In that amended application the Applicant does not set out any orders which he seeks but presumably seeks orders in the nature of certiorari and mandamus. The Applicant set out three grounds:
1. The Tribunal did not consider that I did not have a chance to get evidence from China. It is impossible. I wait the legal advice.
2. The RRT had jurisdictional errors when applying statutes and common laws. The Department of Immigration & Citizenship abused the power under the Migration Act (1958).
3. I hope the Refugee Review Tribunal and the Department of Immigration & Multicultural Affairs think about what should be happening when I go back to my home town now - no job, face detention.
As I said, the Applicant has not attended Court today. The lawyers for the First Respondent have filed written submissions prepared by Mr O'Donnell of counsel. The submissions point out that the Applicant's grounds are not particularised and state that the amended application should be treated as a generalised attack on the Tribunal's reasoning.
The Respondents submit that the Tribunal had accepted that the Applicant's written statement attached to his protection visa application had been prepared for him by another and noted that the Tribunal took the view that differences between the Applicant's statement in his oral evidence given to the Tribunal at the hearing were due to errors by the person who had prepared the written statement for the Applicant. Consequently where there were inconsistencies between the Applicant's written statement and his oral evidence, the Tribunal preferred the Applicant's oral evidence but did not hold the inconsistency against the Applicant's credit.
However, it is submitted that the Tribunal disbelieved the Applicant based on the vagueness of his claims and his hesitancy and evasiveness in giving evidence as to the level of his labour activism in China. On this basis the Tribunal came to the conclusion that the Applicant had only been a minor participant in the labour protest in 2003 after he was retrenched in 2002. On the basis of country information as well as the Tribunal's assessment of the Applicant's evidence, the Tribunal concluded that the Applicant was not of ongoing interest to the Chinese authorities and concluded that the Applicant did not have a well‑founded fear of persecution for a Convention reason.
I am referred to the decisions of ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] and also W148/00A v Minister for Immigration (2001) 185 ALR 703, paragraphs [64] to [65]. Counsel for the Minister submits, correctly in my view that assessments of the credibility of testimony based on demeanour, coherence and it's consistency with independent country information is clearly within the Tribunal's jurisdiction.
He further submits there is no error of law let alone jurisdictional error, it's simply making a wrong finding of fact. I am referred to the decision of the High Court of Australia in Abebe v The Commonwealth (1999) 197 CLR 510, paragraph [137]. To grant relief for such an error would be to grant merits review which is impermissible and I am referred to the Minister for Immigration & Multicultural Affairs v Wu Shan Liang [1996] HCA 6 at 272. In my view, the submissions are correct.
The fact is that the Applicant, in his application, is doing no more than seeking merits review. He is making a challenge to the findings of fact by the Tribunal and the findings of fact are solely within the province of the Tribunal, the administrative decision-maker. There is, in my view, evidence upon which it is appropriate for the Tribunal to have made the findings of fact which it did. There is no jurisdictional error. I am mindful of the fact that the Applicant is not legally represented and indeed has not attended Court today.
I have read through the decision independently of the parties’ submissions to ascertain whether I could identify any jurisdictional error or an arguable case for one. There is no jurisdictional error that I can discern. In my view the decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Consequently, the decision is not subject to certiorari and mandamus or prohibition and the application must be dismissed.
I note the title of the Minister has changed and I will make that order.
There is an application for costs on behalf of the First Respondent Minister. In my view a costs order is appropriate in the circumstances. The amount sought is $4,500.00 which is within the scale provided by the Rules and it is an appropriate amount.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 16 March 2007
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