SZJSJ v Minister for Immigration

[2007] FMCA 2030

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJSJ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2030

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424A; 424A(2); 474; pt.8 div.2

Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZJSJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3407 of 2006

Judgment of: Emmett FM

Hearing date: 4 December 2007

Date of last submission: 4 December 2007

Delivered at: Sydney

Delivered on: 4 December 2007

REPRESENTATION

Applicant in person with Mandarin interpreter

Counsel for the Respondent: Mr H. Bevan

Solicitors for the Respondent: Ms V. Vazquez, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3407 of 2006

SZJSJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 September 2006 and handed down on 19 October 2006.  The applicant claims to be from the People’s Republic of China (“PRC”) and claims to have a fear of persecution in the PRC from various persons and entities by reason of his homosexuality. 

2. The applicant arrived in Australia on 16 April 2006, having departed legally from Shanghai on a passport issued in his own name and a sub‑class 676 visitor’s visa issued on 12 April 2006. 

3. On 26 April 2006 the applicant lodged an application for a protection Class XA visa with the then Department of Immigration and Multicultural and Indigenous Affairs.  In his protection visa application the applicant claimed to have suffered persecution in the PRC by reason of his homosexuality, both at his school and by his subsequent employer and was prevented from obtaining employment by the government.

4. The applicant also stated that there was no tolerance from the public in the PRC for homosexuality and that homosexuals were forced to accept treatments from mental illness hospitals.  The applicant stated that his family had been tortured verbally and physically as a result of his homosexuality.  The applicant stated that at night people banged on the family door and stones were thrown through the windows once the applicant's homosexuality became known.  The applicant stated that his school and the authorities of the country would place the applicant in a mental illness hospital for treatment if he were to return to the PRC.

5. On 12 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. 

The Tribunal review

1. On 15 June 2006 the applicant lodged an application for a review of the delegate’s decision by the Tribunal.  The applicant provided a brief statement in support of his review application in which he stated the following:

   “I am a homosexual.  I and my partner are employed by the same school.  We have kept the relationship for years.  we (sic) were sent to Australia to check whether we are gay or not.  My job will be terminated if we still keep our relationship.  I am afraid of being sent to a mental hospital only because I am a gay.  The people from government ever visited my family in order to scare them.  I could not stay in China because of discrimination.”

2. On 30 June 2006 the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it in relation to his application but it was unable to make a decision in his favour on that information alone.  The letter from the Tribunal went on to invite the applicant to come to a hearing to give oral evidence and present arguments in support of his review application.  The letter also invited the applicant to send any new documents or written arguments.  He wished the Tribunal to consider.  No further material was received by the Tribunal from the applicant.

3. The applicant attended a hearing before the Tribunal at which he gave oral evidence and expanded upon his written claims and made several further claims. On 4 August 2006 the Tribunal wrote to the applicant pursuant to s.424A of the Act, identifying information that may be part of the reason for affirming the decision under review, and inviting the applicant to comment.

4. The first respondent read the affidavit of Jonathon Willoughby‑Thomas, sworn 13 September 2007, deposing to the usual practice of sending correspondence, including letters, sent pursuant to s.424A of the Act to applicants. In particular Mr Willoughby-Thomas annexed to his affidavit a printout from the Tribunal’s electronic case make system that disclosed that the letter was sent to the applicant by prepaid post on the date of the letter, being 4 August 2007.

5. In the circumstances, I am satisfied that the letter was sent in compliance with s.424A(2) of the Act. The particulars of the information in the Tribunal’s s.424A letter are accurately set out in the written submissions of the first respondent as follows:

   “7.  The particulars of information outlined in the s.424A letter were as follows:

   (a) There were inconsistencies in the evidence variously given by the applicant at the hearing, in his protection visa application and his visitor visa application regarding the nature of his employment with the school, the purpose of his trip to Australia and the circumstances in which he feared losing his job: CB 54.4-55.4.

   (b) There were internal inconsistencies in the evidence given by the applicant during the hearing regarding whata happened when he was called to the headmaster’s office, and several of these claims were not mentioned in his protection visa application: CB 55.4-55.5.

   (c) The applicant’s claims in his protection visa application that his family was harassed at home were not mentioned in his evidence at the hearing: CB 545.6.

   (d) The claims made by the applicant in his protection visa application that the authorities in China did not tolerate homosexuality were inconsistent with independent country information: CB 55.7-56.2.

   (e) The applicant gave inconsistent evidence in his protection visa application and at the hearing regarding the assistance he claimed to have received in completing his protection visa application CB 56.4.

   (f) The evidence given by the applicant at the hearing and his protection visa application concerning the size of Yanai City and his reasons for not relocating to Beijing or Shanghai was not supported by independent country information: CB 56.5-56.6.

   (g) The evidence given by the applicant at the hearing about his employment status with the school prior to his departure to Australia was inconsistent with information contained in his visitor visa application: CB 56.7.”

6. The s.424A letter advised the applicant that the information was relevant because it may indicate he was not a witness of truth and that specific claims made by him are not true. The applicant was invited to comment on the information by 29 August 2006. No response was received by the Tribunal from the applicant to that s.424A letter.

7. The Tribunal in the claims and evidence section of its decision identified the written and oral claims made by the applicant.  It also noted with particularity various exchanges it had with the applicant about aspects of the applicant’s evidence that cause it concern and noted the applicant’s responses.  In particular it noted that independent information before it disclosed that there were no laws criminalizing private homosexual activity between consenting adults and noted that gay men and lesbians and stated that official tolerance has improved in recent years.

8. The Tribunal noted that independent information before it disclosed that reports indicated that there is little overt anti-gay hostility and gay bashing is almost unknown in China.

9. The Tribunal noted that it put this information to the applicant and found that the applicant’s claims were not consistent with the independent information. 

10. The Tribunal then identified various inconsistencies in claims made by the applicant between his written claims and his oral claims and noted that the applicant also made “continuous changes” at the hearing when the Tribunal asked him about various aspects of his claim.  The Tribunal found the applicant’s claims were internally inconsistent and identified with particularity those inconsistencies.

11. The Tribunal found the applicant not to be a truthful or credible witness and rejected the applicant’s claims of being a homosexual in their entirety.  The Tribunal found that the applicant had fabricated his claims in order to strengthen his claim for refugee status.  The Tribunal found that the applicant does not have a real chance of persecution if he were to return to the PRC for any Convention reason and accordingly affirmed the decision under review.

The proceeding before this Court

1. The applicant filed an initiating application in this Court, seeking judicial review of the Tribunal’s decision on 20 November 2006. 

2. On 14 February 2007, the applicant filed an amended application identifying the following ground:

   “The decision involved was an important exercise of the power conferred by the Migration Act and Regulations.

   My name is [SZJSJ] and I was born on 4 March 1970 in [a] Province, P.R. China.  I submitted my protection visa application in DIMIA on 26 April 2006.

   I am a homosexual.  I and my partner are employed by the same school.  We have kept the relationship for years.  We were sent to Australia to check whether we are gay or not.  My job will be terminated if we still keep our relationship.

   I am afraid of being sent to a mental hospital only because I am gay.  The people from government ever visiting my family in order to scare them.  I could not stay in China because of discrimination.

   In Australia homosexual is very normal.  We are very happy to stay in Australia.  I have no reason to go back to my original country.”

3. The applicant appeared this morning without representation although had the assistance of an interpreter.

4. The applicant confirmed that he relied upon the grounds identified in the amended application.  It is clear, however, that there is no error identified in the amended application that is capable of review by this Court.  The applicant was asked whether he had any further material to support his applications and he confirmed he had none.  The applicant was invited to make submissions in respect of any of the grounds identified by him in either his application or amended application and the applicant had declined to make any submission.  The Court had ground 2 interpreted for the applicant’s assistance and invited the applicant to explain what he meant by that ground.

5. The applicant declined to make any submission in support of that ground.  In the circumstances, the ground is unsupported by particulars and does not disclose any error capable of review by this Court.  A fair reading of the Tribunal’s decision makes clear that the Tribunal considered the applicant’s claims in detail, explored the various claims made by the applicant, notified the applicant in writing of concerns he had had about inconsistencies in the applicant’s oral claims with his written claims, explained the relevance of its concerns and invited the applicant to comment.

6. As stated above in these Reasons, the letter sent to the applicant by the Tribunal dated 4 August 2006 is sent in accordance with s.424A of the Act in that it was sent to the only address identified by the applicant at all in his review application and was sent in compliance with s.424A(2) of the Act.

7. In the circumstances, the findings made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.  A fair reading of the Tribunal’s decision makes clear that the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.

8. The Tribunal applied the correct law to the findings it made in respect of the claims before it and made conclusions based upon those findings.  In particular, the Tribunal’s findings in respect of the applicant’s credibility were open to it on the evidence and material before it and for which it provided reasons.  Those findings are a matter for the Tribunal and I refer to Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407.

9. It was made clear to the applicant in the delegate’s decision that the applicant’s claims were sparse, contradictory, and lacking in detail, and that the applicant’s claims of his homosexuality were uncorroborated.  The applicant provided no corroborative evidence or material before the Tribunal.

10. Accordingly, there is no error in the decision of the Tribunal going to its jurisdiction. Accordingly, pursuant to s.474 of the Act, the Tribunal's decision is a privative clause decision and this Court has no jurisdiction to interfere.

11. The proceeding before this Court commenced by way of application filed on 20 November 2006 is dismissed with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  5 December 2007