SZJXK v Minister for Immigration

[2007] FMCA 1971

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJXK v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1971

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJXK”.

Migration Act 1958 (Cth), ss.91X, 422B, 476

Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 105 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZGWH v Minister for Immigration and Citizenship [2007] FCA 543

Applicant: SZJXK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3867 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 20 September 2007

Delivered at: Sydney

Delivered on: 29 November 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. The application filed on 21 December 2006 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3867 of 2006

SZJXK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. The applicant claims he is from Dong Han, Fuqing City, The People’s Republic of China. He arrived in Australia on 27 January 2006 and applied for a protection visa. A delegate of the first respondent refused to grant him a visa and this decision was affirmed on review by the Refugee Review Tribunal (“Tribunal”). He now seeks judicial review of the Tribunal’s decision.

2. The applicant claims that he had a dispute on a building site and this person reported his Falun Gong activities to the police. He claims the Public Security Bureau (“PSB”) arrested him, beat him and persecuted him by various means. He was subsequently verbally abused, beaten and taken to a police station every few days for more than a year. He told the Tribunal that he only practiced Falun Gong infrequently and that his real fear arose from the dispute on the building site and the accusation that he was a Falun Gong practitioner.

3. A Court Book (“CB”) prepared and filed by the first respondent's solicitors is marked Exhibit “A”. This document was read into evidence.

4. Mr Mitchell tendered the affidavit of Laura Gazi affirmed on 14 September 2007. Attached to this affidavit are copies of three brochures issued by the Tribunal. These documents were read into evidence.

5. The original application filed on 21 December 2006 contains four grounds of review.

Consideration

1. At the first Court date, the applicant indicated that he wished to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice. The applicant was allocated a panel adviser and the Court file shows that he attended the conference and received advice. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon. The applicant was also required to file written submissions prior to the final hearing. Nothing was filed and when asked, the applicant indicated that he believed his migration agent would attend to those issues.

2. The applicant told the Court that his migration agent was present at the directions hearing when this matter was set down for final hearing. Copies of the orders made at the first Court date and subsequent directions hearing were given the applicant prior to his leaving the courtroom on both occasions. The applicant said that these orders had been given to the agent. He was unable to clearly identify the agent or provide a business address. The applicant also stated that he had had no contact with the agent since the directions hearing.

3. When the applicant was asked whether he had received a copy of the first respondent’s written submissions and Ms Gazi’s affidavit, he replied that he had not. Mr Mitchell tendered copies of correspondence forwarded to the applicant which included these documents. The applicant confirmed his residential address but repeated he had not received either document. I instructed the interpreter to translate the documents to the applicant so that he was aware of their contents.

Ground one

1.  I did not read and understand English as well.  My friends read the letter and told me the date of RRT hearing.  I did not know I should take some new information to the RRT hearing so I did not give my new documents to the RRT hearing.

1. Mr Mitchell contends that this claim does not demonstrate that the Tribunal decision was not made under the Act or that the Tribunal breached duties inherent in its jurisdiction: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]. It is also submitted that the procedural code constituted by Division 4 of Part 7 of the Act does not require the Tribunal to provide the applicant with a translation of correspondence sent to him: s.422B of the Act; Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62; SZGWH v Minister for Immigration and Citizenship [2007] FCA 543 at [12].

2. Mr Mitchell submits that when the Tribunal invited the applicant to provide further documentation in support of his claims, it also gave him brochures explaining the hearing and advising him to seek information in his own language (CB 44, 46, 48, 50); affidavit of Ms Gazi, attachments “A”, “B” and “C”. Mr Mitchell contends that the invitation to the hearing was real and meaningful: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37]. The failure by the applicant to obtain further clarification of the purpose of the hearing, or to provide documents, does not indicate jurisdictional error. It is clear that the person who assisted the applicant in the original visa and Tribunal applications understood the application forms sufficiently to lodge valid applications. The applicant was extremely guarded about revealing the identity of his migration agent. Any claim by the applicant that the person assisting him has a limited understanding of the English language and the application processes is contradicted by the fact that the applications have been made within the broad framework of the Migration Act. I am not satisfied that any error on the part of the Tribunal has been identified and this ground cannot be sustained.

Grounds two, three and four

2.  When I arrived in Australia I have lost my citizen of the People’s Republic of China.  I lost ID of China so I did not bring ID of China when I left China.  Now I have no any citizen in Australia.  So I apply the protection visa.

3.  I was forced to leave China.  It was so difficult to get my passport.  I had to pay the money for RMB$120,000 to get my passport.  I lost everything in China until I arrived in Australia.

4.  So the tribunal decision is void and of no effect.

1. Mr Mitchell submits that this Court cannot review the correctness or fairness of the Tribunal decision nor review the merits of the applicant’s claim for asylum: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35]-[36]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 105 CLR 259 at [281]-[282], [291]-[292]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49]-[108]-[109], [158] and [179]. It is submitted that the Court’s jurisdiction is limited to determining whether the Tribunal decision was made under the Act: Plaintiff S157/2002 at [76].

2. The three grounds do not attempt to raise any issue in respect of the Tribunal decision and do nothing more than re-state aspects of the applicant’s claim.

3. The applicant declined to make oral submissions and further declined to respond to Mr Mitchell’s written submissions. I am satisfied that the application should be dismissed with costs.

Conclusion

1. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  29 November 2007