SZJUQ v Minister for Immigration

Case •

[2007] FMCA 1902

•

20 November 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJUQ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1902
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal was biased.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A; 424A(1); 474
Re Minister for Immigration; Ex parte Applicant S154 of 2002 (2003) 201 ALR 437
NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
Re Minister for Immigration; Ex parte Epeabaka [2001] HCA 23
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Applicant: SZJUQ
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3590 of 2006
Judgment of: Emmett FM
Hearing date: 12 November 2007
Date of last submission: 12 November 2007
Delivered at: Sydney
Delivered on: 20 November 2007

REPRESENTATION

Applicant appearing on his own behalf
Solicitors for the Respondent: Ms B. Rayment, Sparke Helmore
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3590 of 2006

SZJUQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. The Applicant claims to be entitled to a protection visa by reason of a fear of persecution from the authorities in the People’s Republic of China (“the PRC”) because of his membership of an underground church.

  2. The Applicant departed the PRC on 1 February 2006 and arrived in Australia on 2 February 2006.

The Applicant’s Protection Visa Application

  1. On 27 February 2006, the Applicant lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs.

  2. The Applicant provided a statement in support of his application in which he claimed to have been accused of being a member of an underground church in Fuqing, the Shouters. The Applicant stated that he worked as a self employed driver and in 2002 was contracted to transport some bibles to Fuqing. The Applicant stated that he did not know the bibles were for the Shouters and was not “a religious believer”.

  3. The Applicant stated that in September 2005 he was detained by police and questioned about his involvement with the Shouters. The Applicant stated that police believed he was a key member of the Shouters and was in charge of transporting bibles to Fuqing. The Applicant stated that he paid RMB 60,000 to the local police to secure his release, obtained a passport and came to Australia for protection.

The Review by the Refugee Review Tribunal

  1. On 17 May 2006, the Applicant’s application was refused by a delegate of the Minister on the basis that the Applicant is not a person to whom Australia has protection obligations. The delegate noted that the Applicant did not provide any evidence to support his claims. The delegate also noted that the Applicant was able to depart the PRC legally and without difficulty using a passport issued in his own name.

  2. On 22 June 2006, the Applicant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal (“the Tribunal”). The Applicant did not provide any further material in support of his application.

  3. On 3 August 2006, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter went on to invite the Applicant to come to a hearing on 6 September 2006 and to send any documents or written arguments he wished the Tribunal to consider. The Applicant then sent some further documents in support of his review application, including a letter allegedly from his parents; an income certificate; an advice for study abroad loans; and, a copy of his passport.

  4. The Applicant attended a hearing before the Tribunal at which he gave oral evidence. The Applicant said that he was detained because the government in the PRC though he was a religious supporter and paid RMB 10,000 to be released. He said that in September 2005 he was again questioned by police, arrested without a warrant, detained for a week and questioned further. He said his release was organised upon the payment of RMB 60,000 bribe by his friend.

  5. The Tribunal explored with the Applicant its concerns about the Applicant’s evidence, particularly where it departed from country information that indicated that Fuqing province is not strict and that transporting bibles is not a serious offence.

  6. The Tribunal put its concerns to the Applicant and noted his responses:

    i)The Tribunal noted that the Applicant said that his passport was illegal. The Tribunal noted that when it put to the Applicant that it found it implausible that if his passport was illegal that he would have been able to pass the Australian and Chinese authorities, the Applicant said his passport was legal.

    ii)The Tribunal asked the Applicant why it took him two weeks to leave the PRC after he obtained the visitor’s visa to enter Australia and noted the Applicant’s response that it was the spring festival and his family urged him to spend New Year in the PRC.

    iii)The Tribunal asked the Applicant how his son paid for his studies in Australia and noted the Applicant said he had provided some money and borrowed some from friends. The Tribunal put to the Applicant that in the Applicant’s son’s student visa the Applicant had stated he was employed at a stone factory as a salesman. The Tribunal noted that it put to the Applicant that he was not a driver but a stone salesman since 2000 and therefore was not a driver who delivered bibles. The Tribunal noted the Applicant’s response that he only delivered bibles once a week.

  7. On 7 September 2006, the Tribunal gave the Applicant, in accordance with s.424A(1) of the Migration Act 1958 (Cth) (“the Act”), information in writing that may be part of the reason that the Tribunal would affirm the decision under review. The information was in the nature of the inconsistencies between statements made by the Applicant at the hearing before the Tribunal and information and statements previously provided to the Department in the Applicant’s protection visa application and in relation to the Applicant’s son’s application for a student visa in Australia.

  8. The s.424A letter informed the Applicant that the information was relevant because it indicated that the Applicant may not have been a self employed driver from 2002 until he left the PRC and may not have delivered bibles or been accused of being a member of an underground church.

  9. The s.424A letter informed the Applicant that the information cast doubt on his claim that he would be persecuted if he was to return to the PRC and may lead to a finding that he did not meet the relevant criteria for the granting of a protection visa. The letter also informed the Applicant that the information indicated that he may not be credible and that his evidence had been created and provided to the Department and Tribunal to obtain a protection visa.

  10. No reply was received by the Tribunal from the Applicant to that letter.

  11. The Tribunal found the Applicant’s evidence to be “vague, internally inconsistent and implausible” and amounted to a fabrication. The Tribunal noted in particular the matters that it had put to the Applicant in the s.424A letter and that no response had been received. The Tribunal found the Applicant to be “vague” when he was questioned about his customers as a self employed truck driver. The Tribunal also found it difficult to accept that the Applicant would wait over two weeks after being granted a visitor’s visa to leave the PRC. The Tribunal did not accept his explanation of being urged by his family to remain for the spring festival in the PRC.

  12. The Tribunal found the Applicant’s evidence in relation to his passport to be “vague and inconsistent”. It referred to the Applicant’s evidence that his passport was illegal and then, when the Tribunal expressed concerns about that matter, the Applicant said that his passport was legal.

  13. The Tribunal also noted the inconsistency that it raised in the s.424A letter in relation to the Applicant’s oral evidence of being accused of being a member of the underground church, Protecting China, whereas in his written statement he claimed to be accused of being a member of the underground church, the Shouters.

  14. The Tribunal concluded, having regard to all the evidence and material before it, that the Applicant’s claims were fabricated. The Tribunal comprehensively rejected all the Applicant’s claims, including the Applicant’s claim of having transported bibles; being detained by the police in March 2003 and September 2005; and, being accused of being a member of an underground church, either Protecting China or the Shouters.

  15. The Tribunal did not accept that the Applicant was of any interest to the PRC authorities at the time he left the PRC and did not accept that the Applicant paid bribes to obtain his passport.

  16. The Tribunal was not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason, is not regarded adversely by the PRC authorities and would not face persecution if he returned.

  17. Accordingly, the Tribunal affirmed the decision under review.

The Proceeding before this Court

  1. On 4 December 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision pursuant to s.39B of the Judiciary Act 1903 (Cth).

  2. The Applicant appeared before this Court without representation however had the assistance of an interpreter.

  3. The Applicant confirmed that he relied upon the grounds identified in an amended application filed on 22 March 2007. The grounds of that application are as follows:

    “1. The Tribunal asked me sensative (sic) questions that has influenced the outcome of my application. The questions asked by the Tribunal which have influenced the consideration of my application for a protection visa were irrelevant to my application. My son’s study is the most important thing for me, for my son’s sake, I can give up anything. I believe that the Tribunal made jurisdictional errors by asking questions like that.

    2. The Tribunal relied on irrelevant information for the consideration of my application.

    3. The Tribunal had bias against me and could not consider my application fairly.”

  4. The grounds of the Applicant’s amended application were interpreted for his assistance and he was invited to say whatever he wished in support of the grounds or his application generally. The Applicant had no meaningful submission to make, other than to say that he did not have much to say and that his son’s application was irrelevant.

Ground 1

  1. The Applicant appears to complain that the Tribunal should not have had regard to any statement made by the Applicant in support of his son’s study application and that the Tribunal was not entitled to ask him questions about it. Such a complaint is misconceived. The Tribunal is entitled to ask questions to satisfy itself of matters (Re Minister for Immigration; Ex parte Applicant S154 of 2002 (2003) 201 ALR 437 at [57]; NADH of 2001 & Others v Minister for Immigration [2004] FCAFC 328 at [124] – [125] and Re Minister for Immigration; Ex parte Epeabaka [2001] HCA 23 at [52]).

  2. The Tribunal put its concerns about the Applicant’s inconsistent statement in his son’s student visa application that he, the Applicant, was employed as a salesman in the PRC and the Applicant’s claim in his protection visa application to be a self employed truck driver. The Tribunal put its concerns about this information to the Applicant in a letter pursuant to s.424A(1) of the Act, identified for the Applicant the relevance of the information and invited the Applicant to comment. The Applicant for whatever reason chose not to respond to that letter.

  3. Ultimately, it is for the Tribunal to consider and evaluate the evidence before it. Findings of credibility are a matter for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]). The adverse credibility findings were open to the Tribunal on the evidence and material before it and for which it provided reasons.

  4. A fair reading of the Tribunal’s decision makes clear that the Applicant was provided with an opportunity to give evidence and present arguments at the hearing in relation to the information contained in his son’s student visa application.

  5. Accordingly ground 1 is not made out.

Ground 2

  1. Ground 2 is unparticularised. The Court asked the Applicant what it was he alleged the Tribunal failed to consider. The Applicant responded that he was helping people in the PRC to transport bibles and was mistaken as a member of an underground church. This was not a meaningful response.

  2. The Court asked the Applicant if the relevant information to which he was referring in ground 2 was the information provided by the Applicant on his son’s student visa application. The Applicant said he had nothing further to say. If it was the information in his son’s student visa application, then that matter has been dealt with above in these Reasons. It is not otherwise apparent to the Court what is the substance of the complaint in ground 2.

  3. As referred to above in these Reasons, the Tribunal identified the Applicant’s claims, considered the evidence and material before it and made findings of fact based on the evidence and material before it and for which it provided reasons.

  4. Accordingly ground 2 is not made out.

Ground 3

  1. The Applicant’s allegation of bias must fail. Such an allegation is serious and would require evidence (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668). A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71]).

  2. Further the Applicant was given leave on two occasions to file and serve evidence in support of his application, including any transcript of the Tribunal hearing.

  3. Accordingly ground 3 is rejected.

Conclusion

  1. The Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review. As stated above in these Reasons, the findings made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. The conclusions made by the Tribunal were open to it and based on the findings it had made.

  2. 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.

  3. The proceeding before this Court commenced by way of application filed on 4 December 2006 is dismissed with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  20 November 2007

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