SZKFV v Minister for Immigration
[2007] FMCA 1425
•3 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1425 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZKFV |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG558 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 3 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the First Respondent: | Ms V McWilliam |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 19 February 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG558 of 2007
| SZKFV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
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 “SZKFV”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 19 February 2007 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 2 January 2007 and forwarded to the applicant by letter dated
23 January 2007. It affirmed a decision of a delegate of the first respondent made on 16 September 2006, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act. Pursuant to r.44.11(c) of the Federal Magistrate Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 on the first Court date and set the matter down for final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 16 April 2007. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of A Duffield, reference 060905703, provides the following background information:
The applicant, who claims to be a citizen of China arrived in Australia on 30 July 2006 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 8 September 2006. The delegate decided to refuse to grant the visa on 16 September 2006 and notified the applicant of the decision and his review rights by letter dated 16 September 2006 and posted on 18 September 2006.
The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention. The applicant applied to the Tribunal on 23 October 2006 for review of the delegate’s decision.(CB 79)
The applicant’s claims contained in his original protection visa application are as follows:
The applicant claims that he belongs to the “shouters” Christian church. He claims the most important leader of the “shouters” was Witness Li who came from northern China. Witness Li travelled to the USA in 1962 where he established the Local Church and an organisation, the Living Stream ministry which publishes work. He died in 1997. The applicant claims the “shouters” were very popular in Fujian but was declared an illegal religious group. He claims that as a cadre for the Salt Bureau he travelled a lot and met many people. One day he met a senior member of the “shouters” and also talked to him about the founder, Witness Li, and Ne Duosheng who founded “Little Flock”. The applicant claims he became interested in studying it and he eventually became a member in 1996. He claims they have religious gatherings and read the Bible. He claims that many members have been sentenced to imprisonment and that he had been under investigation before he came to Australia. He claims he lost his job and was detained by police in June 2000 because of his religious activity. He claims he will face persecution if he returns to China.(CB 81)
Tribunal’s Findings and Reasons
I refer to the following extract from the Tribunal decision under the sub-heading “Findings and Reasons”:
The applicant claims he joined the Shouters Christian Church in June 1996 as a result of his friend’s influence. He claims that he became active in the Church, organising events and recruiting members. He claims that as a result of this activity he was arrested and detained for two months in June 2000. He claims that he was tortured mentally and physically while in detention. He claims that he cannot return to China because he will be persecuted for his activities. He claims that he has been associated with a recent demonstration in September 2006 where three of his friends were arrested. The applicant also claims that there is no freedom of expression in China and the authorities and the CCP are corrupt…
For the reasons set out below, the Tribunal does not accept the present applicant as a witness of truth. The Tribunal is not satisfied that any of the applicant’s material claims to invoke protection obligations in Australia are true…
The Tribunal found the applicant evasive under questioning and found that whilst he was able to recite a number of events, the applicant was unable to give the Tribunal any meaningful information about the Church he claims to have joined, including how they practiced their faith, or in what manner. The applicant’s knowledge of the Christian faith was rudimentary…
The applicant claims that he assisted in the organisation of a demonstration in Dongzhen on New Years Eve 2000 and was arrested as a result of this activity and detained for two months. However, he was only able to provide a much generalised account of the events of the day and his claimed involvement in its organisation…
The applicant claims that he was arrested and detained for two months for being suspected of being an organiser of a demonstration on New Years Eve 2000. He claims he was beaten and tortured and forced to attend re-education classes. The applicant’s account of his arrest and subsequent detention were vague and lacking in detail…
The applicant claims that three of the people involved with him the in organisation of the New Years Eve demonstration in 2000 were arrested in connection with a demonstration that was held in September 2006. As a result of this, he claims that he has also been linked with the September 2006 demonstration by association and his family have been harassed…The applicant has provided no further details to support these claims beyond mere assertion…
The applicant has made several adverse statements about corruption in the Chinese government and CCP, as well as expressing views about the general suppression of political opinion in China… However, the applicant provided no further details to support these claims beyond mere assertion and nothing he stated has satisfied the Tribunal that any harm that may arise from this gives rise to harm that constitutes persecution for a Convention, or any other reason.(CB 86-88)
Application for Review of the Tribunal’s Decision
On 19 February 2007, the applicant filed an application for a review under s.39B of the Judiciary Act setting out the following grounds:
a. procedural fairness, including a breach of s 424A of the Migration Act 1958 (‘Act’);
b. violation of duty by the Tribunal in satisfying itself as to the eligibility of the applicant for a protection visa; and
c. misapplication of law.
At the first Court date, the applicant indicated that he wished to participate in the Court’s free legal advice scheme for unrepresented applicants in refugee matters. The applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 4 June 2007. The applicant was subsequently allocated a panel adviser, who met the applicant and gave him advice on 2 May 2007. However, no amended application has been filed.
Submissions and Reasons
The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. At the directions hearing on
28 June 2007 when this matter was set down for final hearing, orders were made requiring the applicant to prepare and file written submissions in support of his application 14 days prior to this hearing. The applicant confirmed with the Court that nothing had been filed. He also declined an invitation to make oral submissions in support of his application.
Ms McWilliam, for the first respondent, prepared written submissions. I rely on paras.9 to 12 of those submissions in respect of the grounds of review claimed by the applicant:
9. In relation to the first ground, pursuant to s 422B of the Act, the procedural fairness obligations on the Tribunal are set out in Part 7, Div 4 of the Act. The Tribunal complied with its obligations under s 425 of the Act, by inviting the applicant to a hearing (CB 61) in a manner which complied with s 425A of the Act, and the applicant was on notice of the issues arising in relation to the decision under the review from the questions asked of the applicant during the hearing.
10. No obligation arose under s 424A of the Act, as the underlying information relied on by the Tribunal in forming its adverse view of the applicant’s credibility, which was the reason for the Tribunal affirming the delegate’s decision, was provided by the applicant in relation to the application for review and, therefore fell within s 424A(3)(b) of the Act.
11. Without further particulars, the second ground of the application appears to be directed towards merits review and is thus not a proper ground of review to the extent that the complaint may be taken as an assertion that the Tribunal did not give proper consideration to the applicant’s claims, there is nothing to suggest that the credibility findings made by the Tribunal, for which it gave reasons, were not open to it on the evidence before it.
12. Similarly, the third ground does not disclose the nature of any error said to be made by the Tribunal in relation to the law applicable and no misunderstanding or misapplication of the law is discernible on the face of the Tribunal’s decision.
The Tribunal’s adverse credibility finding, and consequent rejection of the applicant’s claims, is a matter for the Tribunal par excellence, see Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J:
[67]…a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”.
I am satisfied that the Tribunal finding in this respect was open to it on rational grounds on the material before it and it discloses no error in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. The Tribunal’s reasons for decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicate the concerns it had about aspects of the applicant’s evidence and which it raised with him during the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that he was not credible.
In respect to the applicant’s claim that he was arrested and detained for two months because he was suspected to be an organiser of a demonstration on New Years Eve 2000, the Tribunal states:
The applicant’s account of his arrest and subsequent detention was vague and lacking in detail. His explanation of why he was suspected of being only an organiser of the sit-in but not a member of the Shouter’s Church was implausible.(CB 87.8, emphasis added)
The Tribunal also states regarding the claim that the applicant was dismissed from his job and suffered discrimination but continued to recruit new members to his Church:
The Tribunal finds it implausible that having been detained the applicant was still able to travel around China to find work and recruit Church members without any adverse interest from the authorities… The Tribunal also finds it implausible that the applicant would not have travelled to Australia at the earliest opportunity if he had a genuine fear of persecution from the Chinese authorities.(CB 88.2, emphases added)
Conclusion
In the circumstances, I am satisfied that the claims of jurisdiction error cannot be sustained and the application must be dismissed. I order that the applicant pay the first respondent’s costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 20 August 2007
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