SZJXF v Minister for Immigration & Anor - [2007] FMCA 1596

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJXF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1596

MIGRATION – RRT decision – Chinese applicant claiming persecution by state agents – disbelieved by Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.420, 424A, 425

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611

Applicant:

SZJXF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3848 of 2006

Judgment of:

Smith FM

Hearing date:

10 September 2007

Delivered at:

Sydney

Delivered on:

10 September 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr M Cleary

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3848 of 2006

SZJXF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant has applied for a protection visa, on the ground that he fears persecution if he returns to the Peoples Republic of China.
He claims that he became owner of a tyre shop at the front of his family home, and that he and his father were persecuted by agents of the government because they refused demands by a politically powerful person, who wished to appropriate their shop without paying compensation. He claims that in March 2004 he suffered an injury to his hand, when gangsters associated with the politically powerful person broke into his shop. While he was in hospital for three months, his father was taken to the police station and held in detention for five months for protesting about this event. His own campaign to obtain justice resulted in his being taken to a mental hospital, and held for six months. He said:
In order to escape further persecution, my relatives, and some kind friend, collected the money to arrange me to go to the overseas; and that is the main reason why I came to Australia in the end.
No supporting evidence for these claims was ever presented to the Department of Immigration, nor subsequently to the Tribunal. The Tribunal interviewed the applicant at a hearing on 12 October 2006, and decided that it did not believe his narrative. It was, therefore, not satisfied that there was a real chance that he would be subjected to serious harm if he returned to China.
The reasons given by the Tribunal pointed to vagueness in the applicant's evidence, and aspects of the history which the Tribunal regarded as implausible. Perhaps, other Tribunal members might have arrived at different conclusions, but I am not satisfied that the present Tribunal did not make a genuine attempt to assess the truth of the applicant's claim, nor that its decision was not open to it on the evidence.
It is not the function of the Court itself to decide whether the applicant should be believed. I can only order that the Tribunal's decision be set aside and that it reconsider his claims if I am satisfied that the decision was affected by jurisdictional error. I have not been so satisfied in this case.
The applicant's amended application contains arguments which the applicant repeated today. They allege error of law constituting jurisdictional error, and procedural error, with reference to three particulars.
The first particular is that the Tribunal failed to comply with obligations under s.424A(1). The argument presented in the amended application identifies the elements in the Tribunal's reasons for not being satisfied by the applicant's narrative, and complains that these points were not put to the applicant in writing with an invitation for written comments. However, this misconceives the duties of the Tribunal under s.424A(1). They do not require the Tribunal's reasoning or its assessment of an applicant’s evidence to be put to the applicant. The argument presented in the first particular, therefore, amounts only to a challenge to the reasoning processes of the Tribunal and does not identify jurisdictional error.
Moreover, I am not persuaded that there was any unfairness to the applicant by reason of the Tribunal not being persuaded by his narrative. Contrary to the submissions of the applicant, the applicant had been put on clear notice that his claims might be disbelieved, particularly, in the absence of any supporting evidence.
The delegate's decision, at page 4, had noted that the applicant’s claims were general and unsubstantiated, and it identified types of documentary evidence which might have leant support, and which had not been provided. The two letters sent to the applicant by the Tribunal, which acknowledged the application and invited him to a hearing, both drew attention to the opportunity that he was being given to present supporting evidence. Finally, the applicant was represented by an experienced migration agent, Priscilla Yu, and could look to her to advise him on how to present his case. It also appears to me that the Tribunal probably flagged its concerns in the course of the hearing, although this is somewhat speculative given the absence of a transcript.
I am, therefore, not persuaded that any jurisdictional error, whether in relation to s.424A, s.425, or any other obligation on the Tribunal, has been identified by the argument provided under the first particular.
The second particular of the amended application argues that the Tribunal failed to comply with obligations under s.420(2)(b) to "act according to substantial justice and the merits of the case." However, the High Court has held in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 that this provision does not give rise to any independent obligations on the Tribunal of a procedural nature. Moreover, I am not persuaded that the Tribunal failed to make a genuine attempt to assess the merits of the case presented to it by the applicant.
The third particular of the amended application submits that the Tribunal failed to comply with obligations under s.425, which requires the Tribunal to afford an opportunity to appear at a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant contends that the Tribunal “denied my rights to give my oral evidences properly; and on many occasions, I was interrupted; or, I was not given sufficient time.” He also contends that “the Tribunal denied my rights to present my arguments relating to the issues arising.”
However, no evidence to establish these contentions has been presented to the Court. The applicant was advised at directions hearings before me of the need to present a transcript, if it was relevant to a ground of review. His case was set down for a final hearing today to give him the opportunity to present all the evidence relied upon. He has not presented any evidence in support of this ground. I am not persuaded from the material before me that the applicant was denied an opportunity required by s.425.
For all the above reasons, I am not satisfied that the Tribunal's decision was affected by any jurisdictional error. I must, therefore, dismiss the application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 24 September 2007