SZJYI v Minister for Immigration
[2007] FMCA 1957
•29 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJYI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1957 |
| 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 “SZJYI”. |
| Migration Act 1958 (Cth), ss.91X, 422B, 424A, 425 |
| Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1993) 49 FCR 576 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZHCW v Minister for Immigration and Citizenship [2007] FCA 688 |
| Applicant: | SZJYI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3916 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 14 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
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 28 December 2006 is dismissed.
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 3916 of 2006
| SZJYI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant is from Tianjin city, the People’s Republic of China. He arrived in Australia on 13 June 2006 and applied for a protection visa. The applicant was refused a protection visa by a delegate of the first respondent on 15 July 2006 and the Tribunal subsequently affirmed the delegate’s decision.
On 30 October 2006 the applicant attended a Tribunal hearing and gave evidence with the assistance of an interpreter. The applicant was represented by a registered migration agent who was not present at the hearing.
The applicant claims he practiced Falun Gong in Tianjin and was persecuted by local police, illegally detained and beaten in an attempt to force him not to practice. He claims that the Gongan bureau of the Hexi police called him to the police station, beat and abused him and wanted him to write a repent letter but he refused. He claims he continued to practice Falun Gong and also introduced it to other people. On 20 March 2001, the Gongan bureau, Hexi branch, Guobao brigade caught and sentenced him to three years labour reform without legal proceedings (CB 75).
The applicant claims that he was persecuted and maltreated in the labour reform centre. He had heard of persecution and brainwashing in other labour reform centres with one Falun Gong practitioner dying as a result. The applicant claims that after he was released, local police continued assaulting and monitoring him. Whenever he found a job, the police would instruct his employer to sack him because of his beliefs (CB 75).
The applicant claims that if he returns to China he will be unable to find a job, and be put in jail again. He states he will live in terror and in fear of the local police and the residence committee. He states that Falun Gong cannot be discussed openly and that the Chinese government will not protect him but put him in jail (CB 76).
A Court Book (“CB”) was prepared and filed by the first respondent's solicitors and is marked Exhibit “A”. This document was read into evidence.
At the first Court date, the applicant indicated that he wished to participate in the scheme for unrepresented applicants in refugee matters the opportunity to receive independent legal advice on the prospects of their application. The applicant was allocated a panel adviser and attended a conference. The applicant was also granted leave to file an amended application after receiving the panel advice, giving complete particulars of each ground of review relied upon. Nothing was filed nor did the applicant prepare written submissions in support of his application.
The applicant’s original application contains three grounds of review:
a)Ground one – jurisdictional error has been made
b)Ground two – procedural fairness has been denied
c)Ground three – the Tribunal did not notify the reasons that it would be based for refusing my application for a protection visa, therefore, I could not provide explanation to those doubts
Consideration
I invited the applicant to make oral submissions in support of his application, but this was limited to a statement that he was still waiting for documents to be forwarded from China. The applicant was advised that this was a judicial review of the Tribunal decision made on 14 November 2006 which would be limited to material that was before the Tribunal. Despite this, the applicant persisted that he was waiting for documents which would describe his injuries. There is nothing in the Tribunal decision to indicate that the applicant requested an adjournment to permit the documents to arrive. In the circumstances, there is no evidence that the Tribunal denied the applicant procedural fairness or breached s.425 of the Migration Act 1958 (Cth): NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]. If the applicant seeks an adjournment of Court proceedings to obtain further documents which are not relevant to this judicial review, that adjournment is declined.
Ground one
This claim is made in the absence of particulars or submissions and is meaningless. This can be nothing more than a general invitation to this Court to independently consider the content of the Tribunal’s decision in making its own assessment of whether any jurisdictional error exists. I will return to this later.
Ground two
Mr Mitchell submits that the Tribunal’s reasons do not disclose any breach of Division 4 of Part 7 of the Act: 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. In support of this contention, Mr Mitchell addressed the following issues:
a)Mr Mitchell submits that the applicant was invited to appear at a Tribunal hearing and present his claims. There is no evidence that this invitation was anything but a real and meaningful invitation or that the applicant was otherwise denied the opportunity to present his claims at the hearing: NAOA at [21].
b)It is submitted that the plausibility of various aspects of the applicant’s claims were put to him both at the hearing and in a s.424A letter sent after the hearing (CB 76-78, 962-964). This issue was determinative of his claims. He was given opportunities at the hearing and subsequent to respond to various aspects of his claims that give rise to the Tribunal’s rejection of those claims: SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 at [33]-[43]. The Tribunal’s appraisal that these claims lacked credibility in key respects could not have surprised the applicant as this was the delegate’s reasons for refusing his application (CB 37-38).
c)It is submitted that the Tribunal’s appraisal of the plausibility of the applicant’s claims was not subject to s.424A(1) of the Act and that that appraisal was not “information”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17]-[25].
d)I agree with the arguments in Mr Mitchell’s written submissions that the Tribunal complied with its procedural obligation under Division 4 of Part 7 of the Act and was not obliged to do anything further: s.422B of the Act; Lay Lat; SZCIJ. In the absence of any particulars or submissions by the applicant in support of the claim that he had been denied procedural fairness, this Court is limited to a consideration of the broad principles of procedural fairness and I believe that has been addressed by Mr Mitchell.
Ground three
Again, this claim is made in the absence of any particulars or submissions.
Mr Mitchell submits that the Tribunal put the determinative issues to the applicant at its hearing on 30 October 2006 and in the s.424A letter of the same date. It is submitted that the Tribunal was not obliged to give the applicant a running commentary of his testimony or to put its subjective appraisals of that testimony to him: SZBEL at [48]; SZHCW v Minister for Immigration and Citizenship [2007] FCA 688 at [26]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at [54] and [85]-[86]; Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 at [61]-[70]. Mr Mitchell submits that the Tribunal’s appraisal of the applicant’s testimony was open to it on the material before it. It could not have taken the applicant by surprise as the credibility of his claims have been in issue before the delegate: SZBEL at [38]; Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1993) 49 FCR 576 at [591].
In the absence of a transcript or recording of the Tribunal hearing, the written decision has to be relied upon as to what occurred at the hearing. Mr Mitchell provided written submissions that address the relevant issues raised very generally in ground three. It is not apparent from the face of the decision record that any issue of the nature inferred by the applicant’s claim could be said to have occurred.
From the Court Book, it is apparent that the applicant has been represented and assisted by a registered migration agent. The application to this Court includes the post office box of that agent as the address for receipt of mail for the applicant. The original application and the applicant’s failure to file an amended application or relevant submissions show that the person helping the applicant has a limited understanding of migration legislation or the process of a judicial review application. The applicant appeared to have little comprehension of what has occurred or what he is attempting to achieve other than creating delay in the review process. An assessment of the Tribunal decision does not indicate the existence of any jurisdictional error and the application should be dismissed with costs.
Conclusion
The applicant in these proceedings is a self-represented litigant and was assisted at the hearing by a Mandarin interpreter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 29 November 2007
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