SZJYF v Minister for Immigration - [2007] FMCA 627

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJYF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 627

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.425

Applicant:

SZJYF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3914 of 2006

Judgment of:

Driver FM

Hearing date:

26 April 2007

Delivered at:

Sydney

Delivered on:

26 April 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms G Broderick
Clayton Utz

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3914 of 2006

SZJYF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 6 November 2006 and was handed down on 23 November 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution by reason of his Christian faith. He claimed to have been detained in a labour camp in China because of his religion.
The Tribunal accepted that the applicant had become a Christian in China but did not accept that he was an active Christian in China. The Tribunal rejected documentary evidence presented by the applicant intended to corroborate his claim of detention in China (court book, page 99). The Tribunal also placed emphasis on the fact that the applicant was able to depart from China without any effort by the authorities there to stop him.
The Tribunal did not accept that the applicant was active in Christian religious activities, particularly of the kind that involves distributing Christian material unacceptable to the Chinese government. The Tribunal did not accept that the applicant would wish to be active in such Christian religious activities in the future or otherwise engage in anti-government political activity in the foreseeable future.
These proceedings began with a show cause application filed on 19 December 2006. In that application the applicant asserted actual notification of the Tribunal decision on 27 November 2006. I find that the show cause application was filed within time. I gave directions in the matter on 12 February 2007. The bench sheet shows that the applicant did not appear on that occasion, although the applicant reminded me today that he arrived after I had completed those orders. A file note by my deputy associate confirms the circumstances.
I listed the matter for a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) today. I also gave the applicant the opportunity to file additional material. The applicant had not done so prior to today although he told me from the bar table that he had instructed his migration agent Ms Qian to do so. He filed in court today by leave a statement which reiterates his protection visa claims.
I received the court book as evidence of the material before the Tribunal and its process. I also received the affidavit of John Douglas Morgan Sheehy made on 4 April 2007 and filed the following day. That affidavit annexes a transcript of the Tribunal hearing held on 3 October 2006. The applicant denied receipt of copies of both of those documents. Exhibits R1 and R2 established to my satisfaction that both Mr Sheehy’s affidavit and the court book were served on the applicant at his nominated address for service by post. The address for service nominated is a post office box number which the applicant said belongs to his migration agent.
The applicant told me from the bar table that his agent denied having any documents for him in relation to this matter despite repeated requests from him. I note that neither letter to the applicant has been returned. I think it likely in the circumstances that the court book and the affidavit of Mr Sheehy reached the applicant’s migration agent and remained with her.
I also have before me the applicant’s affidavit filed in support of his application on 19 December 2006. In that affidavit the applicant repeats his claims of persecution in China.
The grounds of review in the show cause application are meaningless in the absence of particulars. The two grounds are simply bald allegations of jurisdictional error and procedural unfairness. I gave the applicant the opportunity to explain his grounds of review in his oral submissions. The effect of those submissions as I understand them is an assertion that the Tribunal breached its obligation under s.425 of the Migration Act 1958 (Cth) to invite the applicant to a hearing. There is no doubt that the applicant was invited to a hearing and that he attended. However, the applicant asserts that the hearing was not a real opportunity for him to present his claims orally.
I explored the strength of that assertion with the applicant by reference to the transcript. He asserted that he was interrupted when he sought to give comprehensive answers but the transcript does not support that assertion. The transcript also fails to disclose any expression of concern by the applicant about the hearing procedure. I note that on page 18 of the transcript the applicant was invited to submit further evidence in support of his contention that he had been detained in a labour camp in China. He did so and the document appears on page 79 of the court book with an English translation on page 80. The Tribunal dealt with that document in its reasons on page 99 of the court book. The Tribunal said:
The applicant claimed to have been arrested and imprisoned for two years 2003-2005 without formal legal procedure. However, he also said he had a document to evidence that he had been in gaol. He said he did not have it with him, he had left it in China because he was too scared to carry it with him when he left. Asked what document he was referring to, he said he was confused about whether it was the arrest warrant or release certificate. He then said he passed it to his solicitor [migration agent], he did not know if it still existed, it could still be in the hands of his agent. The Tribunal notes that the applicant also told the delegate that he had documentary evidence of his detention but did not produce them when asked to do so. After the hearing the applicant sent to the Tribunal a document purporting to be evidence that the applicant was sent to a Labour Reform Centre for two years. This document is a poor photocopy, said by the applicant to have been obtained from a friend of his wife in China who refused to give the applicant the name of the friend or any contact details. The Tribunal does not accept this as an authentic document showing that the applicant spent time in gaol.
Assuming that the document is the document appearing on page 79 of the court book, I do not agree with the presiding member’s opinion that the document is a poor photocopy. Nevertheless, having regard to the Tribunal’s dissatisfaction with the applicant’s oral evidence at the Tribunal hearing, it was in my view open to the Tribunal to reject the document as inauthentic.
The Tribunal also appeared to rely upon the applicant’s passport in finding that the applicant was able to leave China in his own name. As pointed out to me by Ms Broderick, for the Minister, the Tribunal decision is silent upon where the passport information came from. Neither are the passport details reproduced in the court book. Ms Broderick referred me to page 9 of the transcript and invited me to infer from what is said there about the passport that the applicant presented the passport at the Tribunal hearing. I agree that it is open to me to draw that inference and I do so.
I find that the applicant has failed to demonstrate an arguable case of jurisdictional error in the Tribunal decision. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant expressed concern that he had not received advice under the panel advice scheme. The correspondence file discloses that a panel adviser, Mr Michael McAuley, was selected and that he was advised of the applicant’s contact details. The applicant was also advised of Mr McAuley’s contact details in the letter from the registry dated 15 February 2007. That letter was directed to the applicant’s residential address. The applicant denies receipt of that letter.
I note that on 15 February 2007 the registry informed the Minister’s Department of Mr McAuley’s appointment and Ms Broderick tells me that Mr McAuley was provided with a copy of the court book. If, as the applicant claims, he did not receive advice under the scheme, that appears to be the fault of either him or Mr McAuley. In either case, I do not see that issue as a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 1 May 2007