SZKII v Minister for Immigration
[2007] FMCA 1591
•4 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKII & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1591 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicants are citizens of China claiming fear of persecution on grounds of political opinion – first applicant claimed to have changed political opinion after arriving in Australia – credibility – whether Tribunal breached Migration Act 1958 (Cth) s.424A – no reviewable error. |
| Migration Act 1958 (Cth) ss.424A, 477 |
| SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 |
| First Applicant: | SZKII |
| Second Applicant: | SZKIJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 819 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 September 2007 |
| Date of last submission: | 4 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Baggett |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent's costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 819 of 2007
| SZKII |
First Applicant
| SZKIJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicants, who are husband and wife, are citizens of China. They ask the Court to set aside the decision of the Refugee Review Tribunal handed down on 1st February 2007 refusing them Protection visas on the basis of the husband's political opinion.
The Applicants also ask the Court to send their application for review of the delegate's decision back to the Tribunal for determination according to law.
Grounds of Review
The Applicants claim that the Tribunal decision is affected by jurisdictional error on two grounds:
i)The Tribunal failed to afford the Applicants the benefit of the doubt and rejected the First Applicant's claim on unreasonable grounds.
ii)The Tribunal failed to comply with the requirements of s.424 of the Migration Act because it failed to invite the Applicants to comment on adverse information.
Background
The background to this matter is that the Applicants are citizens of China. They arrived in Australia on 7th September 2006 and applied for Protection (Class XA) visas on 4th October 2006. A delegate of the Minister refused their applications for visas on 25th October 2006. On 28th November 2006, the Applicants applied to the Refugee Review Tribunal for a review of the delegate's decision.
The Applicants provided copies of their passports and a copy of the letter from the Department of Immigration & Multicultural Affairs setting out the decision to refuse their applications.
Application for Review by the Refugee Review Tribunal
The Tribunal invited the Applicants to attend a hearing which took place on 4th January 2007. Only the First Applicant attended the hearing. He gave evidence with the assistance of an interpreter in the Cantonese language. He was asked a number of questions about his claims and told the Tribunal that he had changed his political opinions since he had arrived in Australia. He said that he feared that he would be persecuted if he were to return to China because of his activities in Australia.
The Applicant also said that he had three children in China and he was worried that if he were to return to China his illegal political activities could result in the authorities withholding education opportunities and other opportunities from his children.
The Tribunal told the Applicant that the Tribunal Member had concerns about the veracity of his claims; in particular, about his claim that he had changed his political views since he had arrived in Australia.
The Tribunal signed its decision on 11th January 2007 and handed that decision down on 1st February 2007. The Tribunal affirmed the decision of the delegate not to grant the Applicants' Protection Visas. A copy of the Tribunal decision record can be found at pages 66 through to 77 of the Court Book.
In the decision, the Tribunal set out a summary of the Applicant's claim and evidence. The Tribunal noted that only the First Applicant, the husband, had made specific claims under the Refugee's Convention and the Second Applicant, his wife, relied on being a member of the First Applicant's family.
The Tribunal summarised the evidence under these headings:
1)Primary application; and
2)Review application, being the evidence given at the Tribunal hearing.
The Tribunal's findings and reasons can be found at pages 73 to 77 of the Court Book.
The Refugee Review Tribunal Decision
The Tribunal accepted that both Applicants were nationals of China and assessed the refugee claims of the applicant husband against that country. The Tribunal noted at page 74 of the Court Book,
Central to the applicant's claims is his alleged change of political opinion in September 2006. The Tribunal finds the applicant's account adhering of hose this occurred and the end result to be entirely unconvincing.
The Tribunal was also, at page 74 of the Court Book, critical of the Applicant's credibility as a witness making this finding,
The Tribunal found the applicant to be a witness of low credibility. Much of his evidence at hearing was vague and evasive, beyond the recounting of the bare bones of his refugee claims. He appeared to have given scant thought to his refugee claims, and conveyed the impression that his appearance before the Tribunal was simply a matter of 'going through the motions'. This does not appear consistent with what might reasonably be expected of a person who genuinely fears persecution in his or her home country.
The Tribunal did not accept that the Applicant's political opinion changed at all upon his seeing certain incidents in Australia and did not accept that he acted on that new political opinion. The Tribunal referred to the Applicant's Protection visa application in which he claimed that he would do something to awaken the Chinese people and noted that he claimed to fear persecution arising from that conduct.
Because the Tribunal has rejected the Applicant's claim to have changed his political opinion, the Tribunal did not accept that the Applicant had any basis to promote dissident political views in either Australia or China.
The Tribunal was not satisfied that the Applicant developed any political conviction since he arrived in Australia and noted that, ‘general political conditions in China do not, without more, establish persecution within the meaning of the convention in the Act’.
The Tribunal noted that the First Applicant had not presented any other factors which might establish a real chance of Convention-related persecution. The Tribunal was not satisfied that the First Applicant had a well-founded fear of persecution for any Convention reason.
The Tribunal noted that the Applicant wife, the Second Applicant, did not make any specific claims under the Refugee's Convention and that her application depended on the outcome of the application of her husband.
As the Tribunal found that the husband could not be granted a Protection visa, nor could the wife, therefore, satisfy the alternative criteria under s.36(2)(b) of the Migration Act. The Tribunal affirmed the decision is not to grant either Applicant Protection (Class XA) visas.
Application for Judicial Review
The Applicants commenced proceedings for review on 12th March 2007. They filed an application and brief affidavit by the First Applicant. No amended application has been filed, nor has any written submissions been received.
At the hearing which the First Applicant attended, he indicated that he relied on his documentary evidence but referred the Court to the one-child policy of the Chinese Government. He set out two grounds in the application in which he claimed the decision was affected by jurisdictional error.
The particulars of the first ground that the Tribunal failed to afford the Applicants of any doubt and rejected the claim of the First Applicant on unreasonable grounds. The particulars of that ground are that,
The applicant claims that he has a fear of returning to China due to the fact that he renounced his membership of the Chinese Communist Party in Australia and has become a political dissident. The Tribunal rejected his claims on reasonable[1]) grounds.
[1] Presumably this means “unreasonable” grounds
The second ground is that the Tribunal decision was affected by jurisdictional error in that the Tribunal failed to invite the Applicant to comment on adverse information. The Applicant claims that this is a breach of s.424A of the Migration Act.
I note that the application is slightly outside the 28-day time limit as set in sub-section 477(1) of the Migration Act, but an application has been made for an order that the time for making the application be extended. The application was certainly filed within the additional period of time under sub-section 477(2) and the Minister consented to the application for an extension of time.
In my view, it is clear that the Tribunal decision was based entirely on the Tribunal's rejection of the credibility of the First Applicant's claims and, in particular, its rejection of the credibility of the First Applicant's evidence to the Tribunal. Credibility is, of course, a factual decision and is a matter for the Tribunal provided that there is evidence upon which such a finding of credibility can be made.
I am satisfied, from the Tribunal decision, that there was ample evidence upon which the Tribunal could form its view that the Applicant's evidence was of low credibility.
The Tribunal set out, in the findings and reasons, its specific reasons as to why it found the First Applicant not to be a credible witness. It will be recalled, the Second Applicant did not give evidence as she did not attend the hearing.
The Applicant's first ground is no more than a challenge to the Tribunal's findings. It is a claim for what is known as merits review. This is not open on judicial review. In my view, the first ground has not made out any jurisdictional error as the Tribunal's credibility findings were open to it on the evidence.
The second ground alleges a breach of s.424A of the Migration Act. There is no information upon which the Tribunal relied in making its findings that was caught by the obligation in sub-section 424A(1) of the Migration Act.
The Tribunal decision was based entirely on evidence that the Tribunal obtained from the Applicant as a result of the Applicant being questioned at the Tribunal hearing. That information comes under the exception to s.424A(1) contained in s.424A(3)(b) of the Migration Act.
The High Court has found that disbelief of the applicant's claims or doubts or inconsistencies or the absence of evidence is not information for the purpose of s.424A. (See SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]).
Whilst the Tribunal did, in its findings and reasons, at page 75 of the Court Book, refer to a statement in the Applicant's Protection visa application, this information was canvassed at the hearing with the Applicant and the Applicant expanded on it. Accordingly, that information falls within the exception contained in sub-section 424A(3)(b). This information is information given at the hearing for the purpose of the application and I am referred to the decision in SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 at [42]. There is no breach of s.424 of the Migration Act.
I am aware that the Applicants are not legally represented. I read through the Tribunal decision and supporting material independently of the Applicants' application and the Minister's submissions. There are no arguable grounds for any other jurisdictional error.
As there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. Consequently, it is final and conclusive and it is not subject to the orders of certiorari and mandamus, which the Applicants seek.
There is an application for costs on behalf of the First Respondent Minister. Those costs are estimated at $4,000.00. In my view, this is a matter where an order for costs in favour of the successful Respondent is appropriate and the amount of $4,000.00 is a figure within Federal Magistrates Court Rules.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 18 September 2007
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