SZJWX v Minister for Immigration
[2007] FMCA 1076
•2 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJWX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1076 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a citizen of People's Republic of China claiming fear of persecution on the grounds of religious belief – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 285 |
| Applicant: | SZJWX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3791 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 July 2007 |
| Date of last submission: | 2 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3791 of 2006
| SZJWX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before the Court is an application to review a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 30th October 2006 and handed that decision down on 21st November 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
In his application for review, the Applicant seeks an order to quash or set aside the original Tribunal decision.
Background
The background to this matter is that the Applicant is a citizen of the People's Republic of China who arrived in Australia on 26th February 2006 travelling on a Japanese passport. On 28th March 2006 the Applicant applied for a protection visa. He claims a well‑founded fear of persecution on the grounds of his religious belief. He claims to be a follower of the Christian religion and fears to return to China because he believes that if he continues to practice Christianity in an unregistered church he would be arrested.
On 25th May 2006 a delegate of the Minister refused the Applicant's application for a visa. The Applicant then on 19th June 2006 applied to the Refugee Review Tribunal for a review of that decision.
He indicated in the application that he had an adviser, Mr Steven Chan. The Applicant appointed Mr Chan to be his authorised recipient. Mr Chan provided details of his registration as a migration agent.
The Applicant submitted with his application a statutory declaration by the Applicant. The Applicant also provided other documents to the Tribunal certifying that he was who he said he was.
The Tribunal wrote to the Applicant on 21st September inviting him to attend a hearing on 23rd October 2006. The Applicant indicated that he wished to attend the Tribunal hearing and that he would require a Mandarin interpreter. He also indicated that he wished to submit a copy of a letter that he had received from China that applied to his case. The Applicant's adviser indicated that he sought leave to be present during the hearing.
On 20th October 2006 the Applicant's adviser wrote to the Tribunal providing further documentation towards the Applicant's case. The Applicant attended the hearing and gave oral evidence with the assistance of the interpreter. His migration agent attended the hearing with him. The Tribunal decision record can be found at pages 88 through to 102 of the Court Book. In that decision, the Tribunal Member reviewed the Applicant's claims and evidence from page 91 through to page 100 of the Court Book.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons can be found on pages 100 and 101. The Tribunal accepted that the Applicant was a national of the People's Republic of China. The Tribunal based that finding on the Applicant's evidence and his national ID card. The Tribunal noted that it had looked at the photograph on the Japanese passport that the Applicant had used, but the Tribunal Member did not believe that the photograph on the passport was, in fact, a photo of the Applicant.
The Tribunal noted the Applicant's claims to fear persecution on the basis that he was a Christian. The Tribunal noted that it attempted to test the Applicant's faith and knowledge of Christianity at the hearing. The Tribunal noted that the Applicant had advised the Tribunal that he was baptised when he was 14 years old. The Tribunal asked the Applicant what baptism was meant and recorded that he was not able to convey the symbolic meaning of baptism and Christianity.
The Tribunal noted that the Applicant claimed to have been regularly involved with Bible study from March 2005 onwards. The Tribunal noted the Applicant was not able to name any of the stories from either the New Testament or the Old Testament and did not appear to knowing anything about some basic stories from the Bible.
The Tribunal went on to say at page 101 of the Court Book:
The applicant was unable to advise the Tribunal who Jesus was.
Indeed, the evidence before the Tribunal indicated that the Applicant was not an adherent of Christianity and that his claims had been fabricated in an attempt to invoke Australia's protection obligations.
The Tribunal was not satisfied that the Applicant was a sincere and genuine Christian. It was not satisfied the Applicant had a well‑founded fear of persecution for a Convention reason in the People's Republic of China. Accordingly, the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa.
The application for judicial review
The Applicant seeks judicial review of the Tribunal decision by means of his application filed on 19th December 2006. He sets out three grounds of review:
1. Both DIMA and RRT have applied incorrectly the definition of refugee in my application.
2. The RRT is wrong when it conclusively judges I am not a sincere and genuine Christian.
3. The RRT is wrong when it subsequently concludes that I don't have a well‑founded fear of persecution.
The Applicant attended Court and made an oral submission to the Court. He submits that the Tribunal Member made the decision in a rush and he wants the Tribunal to reconsider his case more carefully. He submits that the Tribunal did not consider his case carefully. He conceded that he was nervous at the hearing and did not answer really well. He told the Court that he had told the Tribunal Member that he was nervous.
I have read the First Respondent's written outline of submissions. Counsel for the Respondent, the Minister, Mr Smith, submitted that the grounds in the application are an attempt to agitate the merits of the case that the Applicant brought for a protection visa. He submitted that the grounds do not deal with any apparent error made by the Tribunal going from its jurisdiction and formed no basis for the orders that are sought in the application.
In reply to the Applicant's oral submission, Mr Smith submitted that the Tribunal's statement of reasons, its decision record show that it did consider the Applicant's claim and evidence carefully. He submitted that the Tribunal had analysed the evidence and compared that evidence with the Applicant's claims.
It is well‑established that in conducting judicial review it is not the function of this Court to second‑guess the Tribunal on matters of fact or judgment. The Court can only correct the Tribunal if jurisdictional error is revealed. (See SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 285 at [3])
The Applicant's application does not disclose any ground for judicial review. It merely seeks a review of the Applicant's case on the merits of that case. The Applicant's claim to the Court today that the Tribunal did not consider his case carefully is not borne out by the decision record. The Applicant speaks here of persecution for the Convention reason of religious belief, and this ground was considered thoroughly by the Tribunal in its decision. It is hardly surprising that the Tribunal was not convinced, bearing in mind the Applicant's lack of knowledge of basic matters arising from the Bible.
The Applicant, of course, is not legally represented in these proceedings. My examination of the Tribunal decision independently of the Applicant's application or the Respondent's submissions indicates that the Tribunal applied the necessary procedures correctly. For example, the Tribunal wrote to the Applicant on 21st September 2006 inviting him to attend a hearing on 23rd October. The Tribunal supplied an interpreter in the Mandarin language for the Applicant's use at the hearing. The Tribunal allowed the Applicant to give evidence and asked him questions about his case. The fact is that the Tribunal did not believe the Applicant was a sincere and genuine Christian based on the Applicant's answers to the Tribunal Member's questions. This is a finding entirely within the province of the Tribunal.
There is no evidence that the Tribunal in inviting the Applicant to a hearing and asking him about his religious belief did anything in breach of s.425 of the Migration Act. This is not a matter to which s.424A of the Migration Act applies, as the Tribunal based its findings on the Applicant's evidence given by him to the Tribunal. Consequently, there is no breach of s.424A of the Migration Act.
My examination of the decision and supporting material does not indicate any jurisdictional error. The application is, in my mind, free of jurisdictional error and is, therefore, a privative clause decision as defined in s.474 of the Migration Act. Accordingly, the Applicant is not entitled to the relief which he claims. I propose to dismiss the application.
There is an application for costs on behalf of the First Respondent, the Minister. The application has been unsuccessful in his claim, and it is appropriate that I should make an order for costs in favour of the Minister. The amount sought is $5,000.00, which is within the scale envisaged by the Federal Magistrates Court Rules. I propose to make that order.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 9 July 2007
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