SZKJX v Minister for Immigration

Case •

[2007] FMCA 1353

•

1 August 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKJX v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1353

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of the People's Republic of China – claim of fear of persecution because of imputed membership of Falun Gong or association with Falun Gong member – illogicality – procedural fairness – no reviewable error.

PRACTICE & PROCEDURE – Extension of time for making application.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 424A, 425, 474, 477
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
Applicant: SZKJX
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 954 of 2007
Judgment of: Scarlett FM
Hearing date: 1 August 2007
Date of last submission: 1 August 2007
Delivered at: Sydney
Delivered on: 1 August 2007

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Ms. McWilliam
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. Leave granted to apply for review out of time.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent's costs fixed in the sum $4,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 954 of 2007

SZKJX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 17th January 2007 and handed that decision down on 12th February.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) Visa. 

  2. By means of an application filed on 20th March 2007 the Applicant seeks judicial review of that decision. One preliminary matter that needed to be resolved was an application for extension of time. The Applicant applied for an order that the time for making the application be extended under s.477 of the Migration Act.

  3. Whilst the application stated that the Applicant was notified of the decision on 17th January 2007, I am inclined to believe that this is erroneous as the decision was not handed down until 12th February 2007.  It appears more likely that the Applicant, having been notified by pre‑paid post under the provisions of sub-s.494B(4) of the Act was in fact notified about the 19th February 2007.

  4. Whilst it appears that the application is slightly outside the time prescribed by sub-section 477(1) it is within the time that enables the Court to extend the time. The Application is only one or two days out and the Minister raises no objection to the application being made. Accordingly, I grant leave to apply for review of the Tribunal decision out of time.

  5. The Applicant seeks, in effect, two orders: 

    a)A writ of certiorari quashing the Tribunal decision.

    b)A writ of mandamus compelling the Tribunal to rehear and redetermine the matter according to law.

    I am doubtful that the Court has the power to compel the Tribunal to rehear the application, but it can certainly make an order requiring a determination according to law. 

  6. The Applicant claims that the Tribunal decision was affected by jurisdictional error for three reasons:

    i)The RRT took into account an irrelevant consideration.

    ii)The RRT failed to afford the applicant procedural fairness.

    iii)The RRT acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning.

  7. In order to understand the basis of the application it is necessary to consider the relevant background and the Tribunal decision itself. 

Background

  1. The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 4th April 2006.  On 2nd May 2006 he applied to what was then the Department of Immigration & Multicultural Affairs for a Protection (Class XA) Visa.  This application was refused on 31st July 2006. The Applicant applied to the Refugee Review Tribunal on 7th September 2006 for review of the delegate's decision. 

  2. The Tribunal invited the Applicant to attend the hearing of the Tribunal. The hearing took place in Sydney and was conducted by video conference.  The Member was in Melbourne. The Applicant attended the Tribunal hearing on 26th October 2006 where he gave evidence with the assistance of an interpreter in the Cantonese language. 

  3. The Tribunal considered the Applicant's claims that he assisted a person who is a Falun Gong member and came under adverse notice from the police because of that.  It was because of his relationship with the Falun Gong member that the Applicant said that the police started monitoring him and visited his home which frightened him. He decided to go overseas. He was able to leave China without difficulty but no longer wished to return to China.  The Tribunal asked the Applicant a number of questions about his claim and about the history of his involvement with the man who was the Falun Gong member. 

  4. The Tribunal wrote to the Applicant on 30th October 2006. That letter was headed ‘Invitation to Comment on Information’ and was clearly intended to comply with the requirements of s.424A of the Migration Act. The letter told the Applicant that the Tribunal had information that would, subject to any comments that he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa.

  5. The Tribunal set out information on certain facts that appeared in his written submission for a visa application and then set out certain matters that the Applicant told the Tribunal on 26th October 2006.  The letter went on to say to the Applicant:

    This information is relevant to your application because there are omissions in your statement to the Department and inconsistencies between your statement and your evidence to the Tribunal which cast doubt upon your claim.[1]

    The letter invited the Applicant to comment on that information and sought those comments in writing by 22nd November 2006. The Applicant did not respond to the letter. 

    [1] See Court Book at page 52.

  6. The Tribunal handed down its decision on 12th February 2007.  A copy of the Tribunal decision record can be found at pages 56 through to 64 of the Court Book. In the decision the Tribunal considers the written statement lodged by the Applicant with his application for a visa and considered in some detail the Applicant's evidence at the Tribunal hearing.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out on pages 62 to 64 of the Court Book. The Tribunal noted that the Applicant had arrived in Australia on a valid Chinese passport issued in his own name.  The Tribunal pronounced itself satisfied that the Applicant was indeed a citizen of China and assessed his claims against that country. The Tribunal noted the Applicant's claims to fear persecution in China on account of his association with a Falun Gong practitioner and an imputed adherence to Falun Gong arising from that association.

  2. The Tribunal was prepared to accept that the Applicant may have worked with a person who is imprisoned as a result of his practice of Falun Gong and may have gone to the police station to make representations on his behalf. The Tribunal expressed some doubts about this and did not accept that the Applicant had been imputed with a belief in Falun Gong or that he would be regarded as a Falun Gong practitioner by the authorities as a result of that association. The Tribunal set out its reasons for that finding. 

  3. The Tribunal discussed the Applicant's written and other evidence and set out a number of matters which it did not believe. The Tribunal's scepticism was based largely on inconsistencies in the Applicant's evidence and omissions from his claims, especially when comparing his original application for protection visa with his evidence to the Tribunal.  At page 64 of the Court Book, the Tribunal said:

    These inconsistencies and omissions and the lack of detail about the timing, frequency and content of visits lead the Tribunal to find that the applicant was not questioned by the police following the arrest of Mr Chen or at any time later. 

  4. The Tribunal did not accept that the Applicant was subject to visits from the police as he had claimed or that the Chinese authorities considered him to be a Falun Gong practitioner or that the Applicant has a real chance of being harmed in the future on the basis of an imputed involvement with Falun Gong.

  5. The Tribunal also noted the Applicant's claims to being a follower of the Christian faith. Even though it was not raised directly by the Applicant as a claim, the Tribunal did consider whether the Applicant has a sur place claim based on his claimed involvement with a Christian church in Australia since late 2006. The Tribunal was not satisfied however, saying this:

    The applicant's evidence did not demonstrate any knowledge or understanding of Christianity or any commitment to it as a belief system. He does not appear to have commenced attending Church because of his beliefs, rather his evidence was that he accompanied friends to church because he was told that the friends there would help him.  Whilst the applicant chose to swear on the Bible at the hearing, he acknowledged that he had no knowledge of Christianity and had only a very brief involvement with the church of two weeks' duration.[2]

    [2] See Court Book at page 64.

  6. The Tribunal was not satisfied that the Applicant would seek to attend church or practise Christianity in China if he were to return there.  The Tribunal affirmed the decision not to grant the Applicant Protection (Class XA) Visa. 

Application for Judicial Review

  1. The Applicant then commenced proceedings in this Court. The Applicant sets out his grounds, as I said previously, in his application.  He has filed no other documents since then.  He did not file a written outline of submissions but he attended Court and told the Court that his reasons were what he stated in his application. 

  2. Counsel for the First Respondent Minister, Ms McWilliam, has drafted a set of written submissions in which she addresses the grounds in the Applicant's application. As to ground one – ‘that the RRT took into account an irrelevant consideration’ - Ms McWilliam points out that there are no particulars provided and that there is no error apparent on the face of the decision. She submitted, and correctly, that the only matters the Tribunal Member took into account were the information contained in the Applicant's protection visa and the evidence provided by the Applicant at the hearing.  Without more the first ground could not be sustained.  I am satisfied that that is a correct assessment.

  3. In relation to ground two, which is a claim that the Refugee Review Tribunal ‘failed to afford the Applicant procedural fairness,’ the Applicant provides no particularisation as to why he was not afforded procedural fairness. On the face of the documents I am unable to discern any procedural unfairness. 

  4. The Applicant was told by the Tribunal in its s.425 letter inviting him to a hearing, that on the material before it the Tribunal was not satisfied that it could make a decision in the Applicant's favour so it invited the Applicant to attend a hearing. The Applicant attended the hearing and gave evidence with the assistance of an interpreter.

  5. The Tribunal's account of the questions asked and the s.424A letter to the Applicant certainly ensured that the Applicant was aware of the issues that the Tribunal had to determine. Section 422B of the Migration Act applies to the decision because the application for a visa was made after 4th July 2002. Section 422B provides at Pt 7 of Div 4 of the Act as an exhaustive statement of the requirements of natural justice or procedural fairness and there is nothing to suggest that the Tribunal failed to comply with any of the provisions in Pt.7 of Div.4 of the Act.

  6. There was no breach of s.424A of the Migration Act The Tribunal's decision was based on its independent thought processes and indeed its assessment of the Applicant's evidence and the Tribunal's independent thought processes do no constitute information within s.424A of the Act. (See SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]). In any event, the Tribunal's key finding relating to inconsistencies in the Applicant's evidence and omissions from that evidence, was the subject of an s.424A letter to the Applicant seeking his comments. The Applicant did not reply to that letter. Counsel for the First Respondent submits, and I believe correctly, that there was no failure to accord procedural fairness by the Tribunal.

  7. As to the third ground, which claims – ‘that the Tribunal acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasons’ - no particulars are provided. The Tribunal did not believe the Applicant's evidence because of inconsistencies, omissions and the lack of detail along with what the Tribunal considered to be the general implausibility of the Applicant's account. There is nothing capricious about that, nor is there anything arbitrary.  Even if illogicality were a reason for finding jurisdictional error and it is not, there is no illogicality in the Tribunal's reasoning.  Ground three must fail.

  8. I am mindful of the fact that the Applicant is not legally represented.  Accordingly, I have read through the Tribunal decision and the supporting documents in order to satisfy myself that there is no arguable case for any other jurisdictional error. There is no jurisdictional error apparent. 

  9. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari or mandamus in any Court at any time. It follows that the application must be dismissed.

  10. There is an application for costs on behalf of the First Respondent Minister. The Applicant has been wholly unsuccessful in his claim and in my view this is an occasion where costs follow the event. I propose to order that the Applicant should pay the First Respondent's costs. The amount sought is $4,100.00 inclusive of counsel's fees on a party and party basis. I am satisfied that that is a reasonable figure and within the scale provided by the Federal Magistrates Court Rules.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  10 August 2007


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

2

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26