SZKLI v Minister for Immigration
[2007] FMCA 1164
•5 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKLI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1164 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of the People's Republic of China – applicant claiming fear of persecution for reasons of his religious beliefs – membership of underground church – allegation of bias – no evidence of bias – assertion that Tribunal used old country information does not amount to jurisdictional error – whether Tribunal complied with Migration Act 1958 (Cth) s. 424A – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A, 474(1), 474(2) |
| SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZDZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1782 SZIJK v Minister for Immigration & Citizenship [2007] FCA 141 |
| Applicant: | SZKLI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1090 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 July 2007 |
| Date of Last Submission: | 5 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 July 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Godwin |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1090 of 2007
| SZKLI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The applicant seeks judicial review of the Tribunal decision.
In particular, he seeks the following orders:
i)A writ of certiorari issue to remove the decision of the Refugee Review Tribunal dated 6 March 2007 into the Court to be quashed;
ii)A writ of mandamus to issue to the Tribunal to hear and determine the application of the applicant according to law;
iii)A writ of prohibition to issue to the first respondent to prevent any action being taken in reliance upon the decision of the Tribunal.
The background to this matter is that the applicant is a citizen of the People's Republic of China. He arrived in Australia on 2nd July 2006, and applied for a protection (Class XA) visa on 10th August 2006.
A delegate of the Minister refused his application on 5th August 2006.The applicant then sought a review of that decision from the Refugee Review Tribunal.
The applicant applied to the Refugee Review Tribunal on 8th November 2006 seeking a review of the delegate's decision. The application for review was not accompanied by any supporting documents.
The Tribunal wrote to the applicant on 9th November 2006 acknowledging receipt of the application, and advising that the applicant may be invited to attend a hearing at the Tribunal.
The Tribunal wrote to the applicant on 24th November 2006 requesting that he provide further information.
On 27th November 2006 the Tribunal wrote to the applicant inviting him to attend a hearing at 9:30am on 15th January 2007.
On 4th December 2006 the applicant replied to the invitation advising that he wished to attend the hearing and that he would require a Mandarin interpreter. The applicant responded to the Tribunal's request on 24th November 2006 for further information by sending a letter from the Sydwest Asian Christian Church dated 10th November 2006.
On 16th January 2007 the Tribunal sent the applicant an invitation to comment on information adverse to his claims in his application to the Tribunal. On 7th February 2007 the applicant responded to the invitation to comment.
On 15th January 2007 the applicant attended a hearing before the Tribunal. Essentially, the applicant claims fear of persecution for reasons of his religious beliefs. The applicant claims that he is a member of an underground religious church, a Christian church which the Chinese Government banned because of its close connection to overseas churches. The applicant affirmed his typed statement in support of his protection visa application at the hearing.
The applicant claimed that he worked and followed Mr Jian Hua Tang, a wholesale businessman who sold groceries from village to village. Influenced by Mr Tang the applicant promoted his church to the people of these villages.
The applicant claimed that in March 2006 Mr Tang was arrested for promoting the church. He also claimed that because he was Mr Tang's driver the Government noticed him, thereby placing him in danger.
He stated that family and friends provided news that he should not come home, and that he was still in danger as the Chinese authorities were looking for him.
The applicant claimed that he could not recount any gospel stories or read the Bible because of his lack of education. He also claimed that he had got his visa to come to Australia through bribery, and that he would face persecution if he were to return to China.
A copy of the Tribunal decision record appears at pages 84 through to 98 of the Court Book. The Tribunal's findings and reasons can be found in the Court Book at pages 94 through to 98.
The Tribunal accepted that the applicant was a national of China based on his claims and on his valid Chinese passport. The Tribunal considered the applicant's claims and found that there was no credible evidence that supported his claim that he would suffer persecution on his return to China.
The Tribunal did not find the applicant to be a credible witness.
The Tribunal found that the applicant gave inconsistent evidence in support of his claims. The Tribunal also found that the applicant had very little knowledge of the Christian faith and could not give an explanation of the basic aspects of Christianity or of the Bible.
The Tribunal found that the main reason for the applicant's involvement with Mr Tang was related to supplying groceries to people in the village.
The Tribunal did not give much weight to the letter dated
10th December 2006 from the Sydwest Asian Christian Church as it was based on the applicant's recent attendance at the church in Australia.
The Tribunal also rejected the applicant's claims that he would be persecuted if he returned to Australia, or that there was any threat of his being placed in detention.
Basically, the Tribunal found the applicant not to be a credible witness. He had told the Tribunal that he was an uneducated man who assisted Mr Tang in selling groceries to villages, but the Tribunal noted that the applicant had provided evidence that he held continuous employment in a senior position as purchase manager of Fuzhou Chemical Material Wholesale Company.
The Tribunal rejected the applicant's claims that he was at risk of persecution from the Chinese Government, and did not accept that he was of interest to the authorities.
In short, the Tribunal did not accept that there was any real chance that the applicant would face persecution for any Convention reason if he returned to China, and affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant commenced proceedings for judicial review on 3rd April 2007. He filed an amended application on 13th June in which he sought orders in the nature of certiorari and mandamus and prohibition. In the amended application there are three grounds:
i)The Tribunal has bias against me and did not believe my claims. The decision was biased;
ii)The country information relied on was irrelevant and out of date;
iii)The Tribunal's s424 letter did not conform with the requirements of s424A.
The applicant has not filed any written outline of submissions, but has attended Court today. Counsel for the first respondent Minister, Mr Godwin, has provided a comprehensive written outline of submissions assessing the applicant's claims.
The applicant told the Court that he was very nervous and did not know what to say. I did point out to him that he had nothing to be frightened of in attending Court as he was not on trial and no danger was likely to befall him.
The applicant told the Court that during the Tribunal hearing he was very nervous and found the hearing very scary. He said that he did not sleep well before the hearing. He said that at the hearing of the Tribunal he had a severe headache. He told that to the interpreter, but does not know if that were translated or not. He said that the Member did not mention that statement.
In reply the applicant told the Court that when he sees police cars in the street, either in China or in Australia, he feels very frightened. He told the Court that he and his wife had a second child, obviously contrary to China's one-child policy, and he was fined. He did not tell that claim to the Tribunal he informed the Court.
Dealing with the applicant's claims, Mr Godwin of counsel has submitted that the allegation of bias in the applicant's first ground has not been particularised and is not supported by any evidence, and concluded that the ground has no substance. I asked the applicant at the hearing to expand on his claim that the Tribunal was biased, but he was unable to do so.
There is no evidence of bias. It is a rare case indeed where bias will be ascertained merely from reading the reasons for decision (see SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358, and also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361). Ground 1 must fail for lack of evidence.
The applicant's second ground contains a generalised claim that country information relied upon by the Tribunal was outdated or irrelevant. The only country information that the Tribunal relied on was that concerning the activities of the True Jesus Church in China, and that information referred to at page 96 of the Court Book said that the True Jesus Church had been active in China for some time and had definite creeds and rituals.
Counsel for the first respondent submitted that it was difficult to see how the age of the country information could have had in any way altered its relevance in demonstrating contradiction between the country information that the church had been active for some time, and the applicant's claim that the True Jesus Church was a recent religion.
In any event, an assertion that the Tribunal used old country information does not amount to a source of jurisdictional error.
In SZIJK v Minister for Immigration & Citizenship [2007] FCA 141 at [10] Allsop J said:
Thirdly, the assertion that the Tribunal used old country information does not amount to a source of jurisdictional error. The Tribunal is an expert Tribunal with the resources available to it to understand the countries with which it is dealing. Within reason, and I see no basis to conclude that the choice was irrational, the choice of country information is a matter for the Tribunal.
Again, in SZDZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1782 at [23] it was held that:
It is not the function of the Tribunal to seek to locate further country information and it was not jurisdictional error for the Tribunal to base its decision on independent country information that may happen to be wrong.
In my view, the applicant's second ground fails.
The third ground according to the submission of counsel for the first respondent appears to contain a typographical error in that it says:
The Tribunal's s.424 letter did not conform with the requirements of s.424A.
It is clear that the Tribunal wrote to the applicant on different occasions in accordance with the provisions of both of those sections. The letter from the Tribunal to the applicant dated 24th November 2006 asks the applicant to provide additional information about the applicant's religious beliefs, and that is clearly a request for information under s.424 of the Migration Act 1958 (Cth) (“the Act”).
The letter to the applicant of 16th January 2007 headed Invitation to Comment on Information sets out information that the Tribunal considered would, subject to any comments that the applicant made, be the reason or part of the reason for deciding that he was not entitled to a protection visa. That letter is clearly written in order to comply with the requirements of s.424A of the Act.
There is nothing problematic in either letter. Indeed, the applicant did provide comments in answer to the s.424A letter by means of a short letter to the Tribunal dated 7th February 2007. There is no breach of s.424A of the Act. Ground 3 must fail.
The applicant is not legally represented in these proceedings. I have read through the decision of the Tribunal and the supporting documents in order to ascertain whether any arguable case for jurisdictional error may be discerned. I cannot identify any jurisdictional error, and I am satisfied that no jurisdictional error appears.
Accordingly, I am satisfied that the Tribunal decision is a privative clause decision as defined by s.474(2) of the Act. Under the provisions of s.474(1) a privative clause decision is not subject to orders in the nature of certiorari, mandamus, or prohibition which the applicant seeks. It follows that the application must be dismissed.
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 there are grounds for making an order for costs in favour of the first respondent.
The applicant has told the Court that he does not make a great amount of money and he cannot afford the amount of $5,000.00. I see no reason to disbelieve that claim. Whilst that is not a ground to refuse to make an order for costs, it is a matter that I will take into account in allowing time to pay. In the circumstances, I allow six months to pay.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 25 July 2007
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