SZJXQ v Minister for Immigration

Case •

[2007] FMCA 929

•

6 June 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJXQ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 929
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant protection visas – applicant is a citizen of China claiming fear of persecution in Hong Kong due to marital difficulty – no reviewable error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.422B, 424A, 425
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205
SZBEL v Minister for Immigration & Multicultural Affairs [2007] HCA 62
NAOA v Minister for Immigration & Multicultural Affairs [2004] FCAFC 241
Applicant: SZJXQ
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3891 of 2006
Judgment of: Scarlett FM
Hearing date: 6 June 2007
Date of last submission: 6 June 2007
Delivered at: Sydney
Delivered on: 6 June 2007

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Free
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3891 of 2006

SZJXQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. The application before the Court is an application for review of a decision of the Refugee Review Tribunal that was signed on 30th October 2006 and handed down on 21st November 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.

  2. In her application for review filed on 22nd December 2006 the Applicant seeks an order from the Court setting aside the decision of the Refugee Review Tribunal.  The Applicant also seeks an order to the Refugee Review, the Second Respondent in this matter, in effect returning the application for a visa to the Tribunal to be heard and determined.

Background

  1. The background to this matter is that the Applicant is a citizen of China.  She formerly lived in Hong Kong.  She arrived in Australia on 23rd April 2006; she applied for a Protection (Class XA) visa on
    1st June 2006. On 26th July 2006 a delegate of the Minister refused to grant the application for a visa. On 27th August 2006 the Applicant applied to the Refugee Review Tribunal for a review of that decision.  She did not lodge any other documents with the Tribunal at the time she lodged her application for review.

  2. The Tribunal wrote to the Applicant on 7th September 2006.  A copy of that letter appears on pages 50 and 51 of the Court Book. That letter invited the Applicant to attend a hearing of the Tribunal to give oral evidence and present arguments in support of her claims. That hearing was scheduled for 10:00am on 16th October 2006.  The Applicant did not reply to that invitation to a hearing. The letter was returned unclaimed, but she filed a document with her change of contact details.

  3. The Tribunal's records show that the Applicant attended the hearing of the Tribunal that took place at 10:00am on 16th October.  There was an interpreter in the Mandarin language present at the time.  The Applicant brought with her her passport.  The Tribunal's decision record, which appears at pages 78 through to 87 of the Court Book, shows that the Applicant appeared before the Tribunal on 16th October 2006 to give evidence and present arguments.

  4. After the hearing on 19th October 20006 the Tribunal wrote to the Applicant inviting her to comment on certain information. The letter, which appears on pages 71 to 73 of the Court Book, began by telling the Applicant:

    The Tribunal has information that would, subject to any comments to make, be the reason or part of the reason for deciding that you are not entitled to a protection visa.

  5. The letter then set out the text of a statement that accompanied the Applicant's primary application, in other words her application for a visa.  The Tribunal's letter referred to that information and said:

    These claims are inconsistent with your statement at the recent hearing before the Tribunal in which you claimed that you fear persecution in Hong Kong because:

    ·    You have no personal security in the country due to the difficulties you had and continue to have with your husband.

    ·    You did not engage in any political activities against the government in Hong Kong.[1]

    [1] See Court Book at page 72.

  6. The letter then invited the Applicant to explain first, the inconsistency in her claims, and second, why she did not mention the difficulties that she had with her husband and her domestic circumstances in the statement that accompanied her primary claim to the Department.  The letter went on to say:

    This information is relevant as it indicates that you have not provided consistent information to the Department and the Tribunal.

    The Court Book does not contain any evidence of any reply to that letter.

  7. The Tribunal handed down its decision on 21st November 2006.  In that decision the Tribunal set out the Applicant's claims and the evidence before the Tribunal and noted that the Applicant had said that she was not willing to return to Hong Kong because she had no security in her life in the country. She said that she had suffered injury to her leg and that people hit her and she was afraid to return to Hong Kong. She claimed she had a fight with her husband and had suffered injury as a result.  She did not wish to return to the country.

  8. The Tribunal recorded that the Tribunal Member asked the Applicant a number of questions about her circumstances. The Tribunal also recorded that the Tribunal Member spoke to the Applicant about her claims in her primary statement that she had been engaged in political activities in Hong Kong. The Tribunal went on to say this at page 85 of the Court Book:

    She did not offer any information to the Tribunal at the hearing, the Tribunal tried several times to engage the applicant to explain what she meant by ‘Combating the Hong Kong authorities’ which she had claimed in her written statement.  She simply repeated her claim that the Hong Kong Government is a puppet regime and provided no security to her.

  9. The Applicant then finally admitted that she had not engaged in any political activity against the government. She said she simply felt insecure because she had no qualifications and life was very bad in Hong Kong.

  10. The Tribunal in its decision referred to the letter sent to the Applicant dated 19th October 2006 which was a letter written under the provisions of s.424A of the Migration Act. The Tribunal noted that the Applicant provided no response to that letter.

The Tribunal’s findings and reasons

  1. The Tribunal's findings and reasons are set out on pages 85 through to 87 of the Court Book.  The Tribunal noted that the Applicant had made two claims, first that she was engaged in political activities in Hong Kong against the government which she perceived to be a puppet regime under the control of the People's Republic of China.  The other claim was that she had personal difficulties in her marriage, and that the two situations combined led her to feel insecure in Hong Kong.  The Tribunal was not satisfied that the Applicant had a well founded fear of persecution for either of those reasons.

  2. Dealing first of all with the claim relating to political activities in Hong Kong, the Tribunal noted that even though the Applicant had claimed to have been engaged in these activities, in her oral testimony she did not provide any corroborative information or any relevant information to support the claims. The Tribunal noted that the Applicant left the Tribunal with the impression that she had concocted the story about her political activities in Hong Kong simply to assist her claims for a protection visa.

  3. The Tribunal referred to the fact that when the Tribunal wrote to the Applicant seeking further information the applicant was not able to offer any further information. The Tribunal concluded that the Applicant was not engaged in any political activity and was not associated with any political action that could have attracted the adverse attention of the Hong Kong authorities.  The Tribunal found the Applicant's claims in that regard were not credible and should be rejected.

  4. The Tribunal then turned to the Applicant's claims of marital difficulties and feeling insecure as a result of those difficulties. The Tribunal had this to say about this ground at page 86:

    Marital difficulties by themselves are not a basis for a protection claim unless such difficulties are also associated with other factors that bring the applicant within one of the Convention reasons.  The evidence in the application offers nothing more than a bare assertion of marital difficulties.  The evidence does not bring the applicant within any of the Convention reasons.

  5. The Tribunal nevertheless examined the Applicant's claims and noted that by her own admission the Applicant's husband had left the family home two years before and had disappeared.  The Tribunal found there was no plausible basis on which the Applicant could claim that she suffered insecurity in Hong Kong.

  6. The Tribunal also considered the Applicant's claim that she feared that her husband could return at any time, but when it was pointed out to her that the authorities in Hong Kong could and were able to assist her, the Tribunal noted that the Applicant had said that she did not want to involve the authorities in domestic disputes or go to a women's shelter because she would be a laughing stock in Hong Kong.  The Tribunal expressed the critical opinion:

    Such a response hardly inspires confidence in the applicant's claim that she cannot avail herself of the protection of the authorities in her country.[2]

    [2] See Court Book at page 87.

  7. The Tribunal noted that the Applicant could have taken advantage of the security of her home in Fujian Province in mainland China, where she claimed that her parents lived and regularly visited.  The Tribunal also noted the Applicant's response, that she was not willing to return to China because salaries in China were very low and could not support her to live comfortably.  The Tribunal did not find that response to be persuasive.

  8. The Tribunal found that the evidence produced did not disclose any convention basis for a claim that the applicant suffers from insecurity in Hong Kong.  The Tribunal also noted that the evidence also provided no rational basis for the Applicant's claims that she feared persecution in Hong Kong.  The Tribunal found that the Applicant, on the evidence that was presented, had no well founded fear of persecution, and affirmed the decision not to grant the Applicant a protection visa.

The application for judicial review

  1. The Applicant's application for review claims that the Tribunal committed jurisdictional errors of law in that it failed to comply with sub-s.425(1) of the Migration Act. The application says that the Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

  2. The Applicant did not file any written statement of submissions, but attended Court and made oral submissions. When asked by the Court to explain why the Tribunal had failed to comply with s.425 the Applicant was not able to provide any explanation. She conceded that she had in fact received an invitation to attend the Tribunal, and indeed she had attended what she described as an interview on 16th October 2006.

  3. The Applicant was given the opportunity to address the Court generally on what other grounds for review there might be. The Applicant told the Court the Tribunal had made an error because it had not granted her application. She went on to say that the Tribunal Member failed to grant her a protection visa, so that was an error.

  4. I have read the written outline of submissions prepared by Mr Free of counsel for the Respondent Minister. As to the Applicant's ground in her application that the Tribunal had fallen into jurisdictional error by failing to comply with s.425 of the Migration Act Mr Free submitted that there was no substance to that ground of review. Indeed, I note that the Applicant conceded that she was invited to attend a hearing and did in fact attend and give evidence. In her oral submission all the Applicant could say to the Court was that the Tribunal did not grant her application, which meant that the Tribunal had fallen into error.

  5. The ground stated by the Applicant in her submission is of course a challenge to the Tribunal's factual findings. It is well established that the Federal Magistrates Court has no role to second-guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.  (See SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]).

  6. Quite properly Mr Free of counsel in his submission canvassed other possible jurisdictional errors, even though they had not been raised by the applicant. He submitted that no error of the kind identified in SZBEL v Minister for Immigration & Multicultural Affairs [2007] HCA 62 arises on the facts of the present case. He noted that the Applicant was plainly on notice from the terms of the delegate's decision, as well as the discussions at the Tribunal hearing, that the issue of whether or not the Applicant had engaged in political activities giving rise to a well founded fear of persecution was an issue in her application for review.

  7. He also noted that the separate claim about feeling insecure because of marital difficulties was a claim that arose in oral testimony at the hearing, and it was made plain to the Applicant at the hearing that the question of whether she had a well founded fear of persecution for that reason was an issue that arose in relation to the application. The Applicant was also put on notice that there was a question as to whether her claims indicated a well founded fear of persecution for a Convention reason, and that was a principal issue.  In any event, he submitted that in the absence of a transcript no inference could be drawn that the Applicant was not aware of the issues arising in relation to her application. (See NAOA v Minister for Immigration & Multicultural Affairs [2004] FCAFC 241 at [21]).

  8. In my view, the Tribunal decision does not disclose any jurisdictional error. Quite clearly there was no breach of s.425 of the Migration Act, and the Applicant conceded that she had been invited to a hearing and had actually attended a hearing and given evidence. There is, on my reading of the decision, nothing to indicate that the Applicant was not made aware of what the issues were relating to whether or not she had a well founded fear of persecution for a Convention reason.

  9. It appears to me that the Tribunal decision shows that the Tribunal adopted a procedure that was eminently fair.  The Tribunal examined both of the Applicant's claims.  The Tribunal asked the Applicant about her claim of fear of persecution for reason of her political opinion, and noted the Applicant's claim that she had not engaged in any political activity.  The Tribunal noted the Applicant's claim of feeling insecure in Hong Kong because of her previous marital difficulties.

  10. The Tribunal found that not only did this not amount to a claim for a Convention reason but in the circumstances referred to in the Applicant's evidence there was no basis upon which she could rationally be found to have a fear of persecution, whether it was for a Convention reason or not.  The Tribunal was not satisfied about the credibility of the Applicant's claims.

  11. The Tribunal did write to the Applicant a letter under the provisions of s.424A of the Migration Act. Whilst the letter did refer to inconsistencies in the Applicant's claims the Tribunal in its reasons for decision did not place any reliance on those inconsistencies. The matters referred to in the s.424A letter did not form part of the Tribunal's reasons for affirming the decision under review. In any event, I am satisfied that the Tribunal did comply with s.424A in its letter of 19th October 2006 when it set out information that was a cause of some concern.

  12. As to the Applicant's claims about her marital difficulties, in my view, s.424A does not apply because this information was provided by the Applicant for the purposes of her application to the Tribunal, and therefore comes under the exception in sub-s.424A(3)(b) of the Migration Act.

  13. The Tribunal was not satisfied that the Applicant had engaged in political activity because of virtually a complete absence of any evidence in support of that claim, quite the reverse in fact, the Applicant in effect abandoned that claim at the hearing. 

  14. In short, I am not satisfied that there has been any breach of s.424A of the Migration Act or anything that would give any suggestion of a possible breach. The Tribunal, to my mind, treated the Applicant very fairly, but the Tribunal could not grant the Applicant's application in the absence of any evidence that she had a well founded fear of persecution for a Convention reason.

  15. My own independent reading of the Tribunal decision, noting that the Applicant is not legally represented, does not indicate any suggestion of any arguable case of jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. It is not subject to any orders in the nature of certiorari or mandamus. There is no basis upon which the Court can or should set aside the decision of the Tribunal, nor is there any basis upon which the Court can remit the application to the Tribunal for reconsideration.

  16. On the contrary, the application will be dismissed.

  17. There is an application for costs on behalf of the First Respondent Minister. Including costs thrown away on the last occasion that amount comes to $6,000.00, which in my view is appropriate.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  18 June 2007


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