SZJYW v Minister for Immigration and Citizenship

[2007] FCA 1305

FEDERAL COURT OF AUSTRALIA

SZJYW v Minister for Immigration and Citizenship
[2007] FCA 1305

SZJYW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 862 OF 2007

RARES J
30 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 862 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJYW
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	30 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $1,150.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 862 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJYW
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	30 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of the Federal Magistrates Court:  SZJYW v Minister for Immigration [2007] FMCA 635.

2. In order to establish a basis for leave to appeal the applicant must show that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice will result from a refusal of leave to appeal:  Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.

3. In this matter the trial judge gave careful consideration to the applicant’s grounds for seeking constitutional writ relief in relation to a decision of the Refugee Review Tribunal refusing him a protection visa.

4. His Honour noted that the first ground was that the applicant had been awaiting legal advice following his election to participate in the Minister’s panel advice scheme.  A lawyer was appointed as his panel adviser.  Both the Court Registry and the Department of the Minister had met all their obligations to enable the lawyer to provide advice to the applicant.  However, his Honour was informed, and there does not appear to be any dispute about the facts, that the solicitor for the Minister had spoken to the lawyer appointed earlier in the week and had been informed that the applicant had failed to contact him in the two months since his Honour had set down a show cause hearing for 26 April 2007.  His Honour rejected the ground.

5. The other two grounds were that the applicant had spent over 10 years in Australia before being notified of the decision of the delegate to refuse him a protection visa.  This unfortunate result occurred because the applicant had changed addresses and had not been informed in writing of the making of the decision or its result in accordance with the provisions in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) at the time of the delegate’s decision. Accordingly, it was only in 2006 that he was notified. He then made an application for review to the tribunal. As his Honour noted, the tribunal made adverse credibility findings about the applicant’s evidence and his claims.

6. Having read for myself the tribunal’s statement of decision and its reasons I am satisfied that the tribunal gave a sufficient explanation for not being satisfied as to the applicant’s credibility. 

7. Next the applicant complained that he did not have sufficient time fully to address the letter written to him under s 424A of the Act following the hearing. That letter asked him to explain apparent inconsistencies between prior statements that he had made and his evidence to the tribunal.  He provided the tribunal with very limited responses to the letter under s 424A.  The tribunal found that, for the reasons and findings that it had made, the applicant was not a truthful witness and his statements in both the original application for a protection visa and to the tribunal lacked credibility.  It found that if the applicant returned to the People’s Republic of China, of which country he is a citizen, in the future he would not practice Christianity, his claim being that he feared persecution on grounds of his practice of Christianity.  The tribunal also found that there was no plausible evidence before it that the applicant had suffered persecution in China because of his political opinion or imputed political opinion.  The tribunal found as a fact that the applicant was not a Christian and had only attended a church in Australia to strengthen his claims to be a refugee within the meaning of the Convention and that, accordingly, pursuant to s 91R(3), it was obliged to disregard the applicant’s attendances at church here.

8. I see no error in his Honour’s decision to reject the arguability of a case of jurisdictional error in light of those matters.  Moreover, I have independently reviewed the statement of decision and reasons of the tribunal and his Honour’s judgment to see whether there was a basis for arguing that the tribunal made a jurisdictional error, and have found that there is no arguable basis.  In his proposed appeal to this Court the applicant advances these grounds:

   (1)     there was a failure to serve him with a notice under s 424A of the Act;

   (2)he was not represented at the hearing before his Honour whereas the respondent was represented by a lawyer;

   (3)the Federal Magistrate dismissed the application without giving the applicant the opportunity to file submissions at the hearing of the show cause case;

   (4)the tribunal should not have relied on country information;

   (5)the Federal Magistrate should have found that the tribunal did not investigate whether the applicant was a member of an underground church in China.

9. At the commencement of the hearing today, the applicant complained that he had only today been served with a copy of the respondent’s written submissions which had been filed and posted to him in about the middle of June 2007.

10. I raised with the applicant and the solicitor for the Minister the file note, dated 23 July 2007, on the Court’s file recording a telephone conversation of an officer of the Court with the applicant through an interpreter, in which he was advised that he could not get a free legal adviser for the hearing.  The note records that the court officer gave the applicant information as to how to locate and speak to the Immigration Advice and Rights Centre.  The applicant is recorded as having said that he understood and had the address for the Department and he also understood that the hearing was listed for today.  The applicant told me today that his friend had spoken on 24 July 2007 with the Court on his behalf. 

11. Despite this, today, he arrived at Court and complained that he was not ready.  He repeatedly told me he needed more time to prepare.  I pointed out to him that it was he who was applying to say that the Federal Magistrate made a mistake and he should give me information as to why that was so.  I gave him a lengthy period to collect his thoughts while I dealt with another application for leave to appeal.  The Court interpreter then interpreted for the applicant the Minister’s written submissions.  Again, the applicant returned to Court saying that he wanted an adjournment for two to three weeks so that he could prepare.  At no time did the applicant advance any substantive argument as to why there was an error warranting a grant of leave to appeal, despite it being his case that there was.

12. I sought to give the applicant every opportunity to put forward whatever reasoning process he might deploy to justify the case which called for the Court to grant him leave but I am afraid that he provided no basis at all. 

13. While I accept that it is daunting and difficult for persons with no legal training, let-alone in another language and in another country, to deal with complex matters in Court, the fact is that the applicant has had ample time to prepare some articulation of why the Court should find errors in what the Federal Magistrate or the tribunal did and he has not provided any. 

14. The only other matters which he raised in the proposed grounds of appeal, which are themselves not particularised, I will now deal with as follows:

    As to ground (1)

    The tribunal served the applicant with a s 424A notice to which he gave a partial response.  No other matter calling for the provision of a notice to the applicant under that section has been raised in the material before me, on my own examination, and certainly none has been advanced by the applicant. 

    As to ground (2)

    There is no basis for concluding that any arguable case for setting aside the Federal Magistrates Court’s decision can be made because of the applicant’s non-representation at the hearing before that Court.  Indeed, as his Honour noted, the applicant failed to take up the opportunity of having a legal adviser assist him.

    As to ground (3)

    The applicant had the opportunity to deal with submissions made by the Minister at the hearing before his Honour.  The real question was whether the applicant had a case at all to which the Minister could sensibly be said to be required to respond in any submissions.  The applicant raised nothing of substance before his Honour.  And he sought to raise nothing before me, despite the fact that since being notified by the Court of the hearing, some considerable time ago, he has known that the matter was for hearing today.  There is no basis in ground (3).

    As to ground (4)

    The applicant says country information should not have been relied on by the tribunal.  Whatever that ground seeks to raise, is completely unparticularised and unexplained.  In any event the allegation is adequately met by s 424A(3)(a) of the Act which provides that no obligation under s 424A is imposed on the tribunal in respect of generalised country information in a case like the present.  This ground is without any substance.

    As to ground (5)

    The tribunal considered the applicant’s claim to have been a member of an underground church in China.  It said that it had reached its finding that the applicant is not a Christian ‘… after taking into account the applicant’s educational level and that he has learnt about Christianity in a house church in PRC where the knowledge about Christianity may not be at the same level as someone who has attended an official church in Australia’.  The tribunal’s finding that the applicant was not a Christian was an effective destruction of the claim that he was a member of an underground Christian Church in China. 

15. For these reasons, I am of opinion that there is no basis upon which I should grant leave to the applicant to appeal from his Honour’s dismissal of the proceedings under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). That rule provides that where the applicant does not show cause, the Court could dismiss the application, if not satisfied that the application had raised an arguable case for the relief claimed. In my view there was no error in his Honour’s judgment. For these reasons there is no basis on which to grant leave to appeal. I will dismiss the application with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        22 August 2007

Applicant:	Appeared in person
Solicitor for the First Respondent:	M Snell of Sparke Helmore
Date of Hearing:	30 July 2007
Date of Judgment:	30 July 2007