SZJYW v Minister for Immigration

[2007] FMCA 635

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJYW v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 635

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), ss.66, 91R, 424A, 441C

Srey v Minister for Immigration [2003] FCA 1292

Applicant: SZJYW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG16 of 2007

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 M Palmer
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. 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

SYG16 of 2007

SZJYW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was signed on 21 November 2006 and was handed down on 12 December 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 religious persecution.  Background relating to the applicant’s protection visa claims and the Tribunal decision on them is set out in the Minister’s outline of written submissions filed on 19 April 2007. 

   
   

   I adopt as background for the purposes of this judgment, with necessary amendments for the purposes of this judgment, paragraphs 3 through to paragraph 11:

   The applicant, a citizen of the People’s Republic of China (PRC), claimed to have been a Catholic since he was a ‘little boy’ and that he joined a house church in 1991. In June 1996 the church was raided and the applicant was arrested, beaten and threatened. The applicant escaped from prison and hid for several weeks before travelling to Australia.

   The applicant lodged an application for a protection visa on 19 October 1996 and a delegate of the first respondent refused that application on 24 October 1997. The delegate’s decision was sent to the applicant on 24 October 1997, however, the letter attaching the decision did not state that the applicant would be taken to have received it 7 days[1] after 24 October 1997. The delegate’s decision was also sent to the applicant’s migration agent, however, the migration agent notified the Department on 3 November 1997 that he had lost contact with the applicant (court book (CB) 40).

   Therefore the applicant was not properly notified of the time in which an application for review may be made in accordance with s.66(2)(d)(ii) of the Migration Act 1958 (Cth) (“the Migration Act”). For notification to be considered valid all of the requirements of s.66(2) must have been met before the “time limit for an application to review begin(s) to run”.[2] Accordingly, the applicant was not properly notified of the delegate’s decision and time did begin to run until the applicant was notified by letter dated 29 May 2006: (CB 41).

   The applicant then applied to the Tribunal for review of the delegate’s decision on 5 June 2006. The applicant provided a statement to the Tribunal dated 13 June 2006.

   The applicant attended a hearing before the Tribunal on 19 October 2006.

   On 20 October 2006, the Tribunal wrote to the applicant pursuant to s.424A of the Act requesting comments on identified inconsistencies in the claims made in his protection visa application, the statement to the Tribunal and his oral evidence at hearing (CB 68-70). On 10 November 2006, the Tribunal received copies of the applicant’s household registration forms (CB 77-78). The applicant did not provide any further material in response to the s.424A letter.

   The Tribunal did not find the applicant to be a credible witness given the inconsistencies in his statements to the Department and the Tribunal and oral evidence at the hearing. The Tribunal accepted that the applicant had some knowledge of Christianity, however, it found his knowledge to be “sparse and lacking in detail” (CB 93.5). At the hearing the applicant was unable to identify any part of the bible and did not have an accurate understanding about Christmas and Easter (CB 93.5). On the basis of the applicant’s responses at the hearing, and the inconsistencies in both of his statements, the Tribunal was not satisfied that the applicant’s claims were true. It was not satisfied that he was a Christian or if he returned to the PRC in the future he would practice Christianity. Further, the Tribunal was not satisfied that the applicant was ever arrested or detained. (CB 93.9)

   Based on the findings that the applicant was not a truthful witness and that he lacked credibility, the Tribunal found that the applicant only attended church in Australia to strengthen his claims to be a refugee (CB 94.2). Pursuant to s.91R(3) of the Act the Tribunal disregarded the applicant’s attendance at church.

   The Tribunal was not satisfied that the applicant had a well-founded fear because of his religion, political opinion or any other Convention reason now or in the reasonably foreseeable future: (CB 94.5)

   [1] Section 441C(4)(a) Migration Act 1958 (Cth).

   [2] Srey v Minister for Immigration [2003] FCA 1292 per Gray J at [53].

2. These proceedings began with a show cause application filed on 3 January 2007.  In that application the applicant asserts actual notification of the Tribunal decision on 19 December 2006.  I find that the show cause application was filed within time.

3. The applicant now relies upon an amended application filed on 10 April 2007.  He continues to rely on his affidavit filed with his original application which I accepted as a submission.  I received as evidence the court book filed on 20 February 2007.  I also have before me the Minister’s response and his outline of written submissions. 

4. The amended application contains three grounds.  The first notes that the applicant is awaiting legal advice.  That is not a proper ground of review.  I note that the applicant elected to participate in the Minister’s panel advice scheme.  Mr Gregory Sarginson was appointed as his panel advisor.  The court registry and the Minister’s Department have met all of their obligations to enable Mr Sarginson to provide advice to the applicant.  Ms Palmer, who appeared for the Minister, told me that she had spoken to Mr Sarginson earlier this week who told her that the applicant had failed to contact him and that he would provide written advice.  The applicant has not yet received that advice but that is not a reason for the Court either to delay its decision or to interfere with the Tribunal decision. 

5. The second ground of review is that the Minister’s Department spent a very long time of about 10 years to process the applicant’s protection visa application.  The applicant’s affidavit also deals with this issue.  The applicant is aggrieved that he was disadvantaged before the Tribunal because of the passage of time.  Because the applicant was not properly notified of the delegate’s decision a second notification letter had to be sent.  That is why so much time passed between the delegate’s decision and the Tribunal review of it.  It is to be expected that over such a long period memory may fade.  It may be accepted that the passage of time placed the applicant at some disadvantage. 

6. The Tribunal made adverse credibility findings about the applicant and his claims.  If those findings had been made without the applicant having the opportunity to comment the applicant would have had a reasonable cause for complaint.  The applicant was invited to attend a hearing before the Tribunal and did so.  The only record of what occurred at that hearing is what appears in the Tribunal decision.  I am unable to say whether at that hearing the applicant offered as an explanation for difficulty in answering questions that there had been a long delay.  However, in the absence of a transcript I am not able to draw any conclusion that the hearing opportunity provided to the applicant was not a fair one. 

7. In any event the Tribunal met its statutory obligation under s.424A of the Migration Act to invite the applicant in writing to comment upon adverse information likely to be material to the Tribunal decision. The adverse information centred upon inconsistencies between what the applicant had told the Minister’s Department and what he said to the Tribunal at its hearing. The only response the applicant made to that invitation was to provide two documents being household registrations translated into English from Chinese. The applicant now says that he did not have sufficient time to respond to the invitation to comment. Based upon what the applicant put to me in his oral submissions I understand that the third ground of review, namely that the Tribunal did not consider his new evidence and asked him to find unreasonable evidence relates to that concern. The applicant conceded from the bar table that he did not ask the Tribunal for any additional time to respond to the invitation to comment.

8. It should also be borne in mind that the applicant was not being asked to provide additional documents.  He was being asked to comment on inconsistencies in his evidence.  The Tribunal was entitled to draw an adverse conclusion from his lack of responsiveness to that invitation. 

9. In other respects I agree with and adopt for the purposes of this judgment paragraphs 12 to 16 of the Minister’s written submissions, with necessary amendments:

   The applicant filed an amended application on 10 April 2007. The application pleads three unparticularised grounds of review.

   The first ground pleads that the applicant is currently waiting for legal advice. This is not a proper ground of review and cannot succeed.

   The second ground of review pleads that “DIMA spent a very long time to process my application” (sic). No error can be established in relation to this ground. As referred to above in paragraph 4, the delegate’s decision was sent to the applicant on 24 October 1997. However, as the decision did not state that the applicant would be deemed to have received the letter 7 days after the date of the letter the notification was not valid. The applicant was properly notified of the delegate’s decision on 29 May 2006 and he subsequently lodged an application with the Tribunal for review of that decision on 5 June 2006.

   The third ground of review pleads that the Tribunal did not consider the applicant’s new evidence and “asked him to find unreasonable evidence” (sic). This ground is unparticularised and it is unclear what evidence the applicant is referring to. If the applicant is referring to his statement attached to his application to the Tribunal, then the Tribunal considered this (CB 84 at [37], 85 at [41], [43], 87 at [47]-[48], 89 at [55]). Further, without particulars it is difficult to determine the basis of the ground that the Tribunal asked the applicant to 'find unreasonable evidence'. No error can be made out from this ground.

   The applicant was unsuccessful before the Tribunal because it could not reach the requisite level of satisfaction on the material before it to find that the applicant met the necessary visa criteria. The primary basis for the Tribunal decision was the inconsistencies in the applicant’s statements and evidence at hearing as well as his limited knowledge about Christianity (CB 93 at [68]). As a result the Tribunal found that the applicant lacked credibility and that there was no plausible evidence that the applicant had suffered persecution as a result of his religion, imputed political opinion or for any other Convention reason (CB 94 at [70]). These finding were open to the Tribunal.   

10. I find that the applicant has failed to demonstrate an arguable case of jurisdictional error. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

11. The application having been dismissed, costs should follow the event. The Minister seeks scale costs in the sum of $2,500. The applicant referred to the difficulties he faces in Australia including financial difficulties. However, impecuniosity is not 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 an 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 of the Federal Magistrates Court Rules.

12. For completeness I should direct that the Minister’s title on the amended application be corrected.  I will make that order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  2 May 2007