SZKLY v Minister for Immigration
[2007] FMCA 1153
•10 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKLY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1153 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a citizen of People's Republic of China claiming fear of persecution because of union activities – credibility – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 474 |
| ReMinister For Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZKLY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1127 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 July 2007 |
| Date of last submission: | 10 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Quinn |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1127 of 2007
| SZKLY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before the Court today is an application to review a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 21st February 2007 and handed that decision down on
15 March 2007. The Tribunal affirmed the decision of a Delegate of the Minister not to grant a Protection (Class XA) visa to the Applicant.
The Applicant filed an application and an affidavit in support on
5 April 2007 seeking judicial review of that decision. In particular he seeks orders:
a)in the nature of certiorari setting aside the Tribunal decision; and
b)in the nature of mandamus remitting his case to the Refugee Review Tribunal for determination according to law.
Background
The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 28th June 2006. He applied to the then Department of Immigration & Multicultural Affairs for a protection visa on 2nd August 2006. His application for a visa was refused on 30th October 2006.
On 27th November 2006 the Applicant filed his application for review with the Refugee Review Tribunal. He did not provide any other documentation to the Tribunal at the time he filed his application for review. The Tribunal wrote to the Applicant on 12th December 2006 inviting him to attend the hearing to take place on 7th February 2007.
The Applicant attended the hearing on that date and gave evidence with the assistance of an interpreter in the Mandarin language. The Tribunal handed down its decision on 15th March 2007 and a copy of the decision record can be found at pages 66 to 75 of the Court book.
The Applicant claimed that he had lived in Hong Kong from March 2005 until he left for Australia. He left Hong Kong legally and travelled to Australia using a passport in his name issued in Hong Kong in October 2005. He entered Australia as a visitor on a tourist visa issued in June 2006.
The Tribunal noted that the Applicant claimed to have left his country because he was persecuted by the Chinese government because he had assisted fellow workers in China with their union activities. The Applicant and a number of union members were dismissed from their employment and took part in a demonstration. The Applicant said that the police arrested three members of the union.
The Applicant told the Tribunal that he moved to Hong Kong in March 2005 which is where his parents live. He remained in contact with his union colleagues and secretly took documents about independent trade unions to them. Eventually the Applicant said he was threatened by the police and told to keep quiet otherwise he would be detained. Eventually he was detained for a period of time and his parents suggested that he escape to Australia.
The Tribunal set out in its decision record that it asked him a number of questions about his passport, his visa and his employment and the reasons why he left China to come to Australia.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 72 through to 75 of the Court book. The Tribunal set out the Applicant's claims in this way:
Essentially the applicant claims that he left China and fears to return there because he was/will be persecuted by Chinese authorities and/or gangsters hired by a company where he worked because of his association with union activities in China, including placing materials about what had happened to him and his fellow workers on the Internet. He claims that he cannot get protection from the harm that he fears in his country.[1]
[1] See Court Book at page 72.
The Tribunal found that the Applicant was in fact the person that he claims to be and was a citizen of China. The Tribunal relied on the Applicant's passport which was issued on 6th October 2005 by the Hong Kong Special Administrative Region.
The Tribunal did not, however, accept that the Applicant was a credible witness and did not accept as true that the Applicant was involved with the union activities of fellow workers in Fujian or that he posted information about how the workers were treated on the Internet.
The Tribunal did not accept that because of the Applicant's union activities that he was kept under surveillance by Chinese authorities or other people associated with a company with whom he used to work in Fujian. The Tribunal did not accept that the Applicant left China or fears to return to China for the reasons that he claims.
The Tribunal found that the Applicant did not have a well‑founded fear of persecution for a Convention reason and affirmed the Delegate's decision not to grant him a visa.
The application for judicial review
The Applicant claims that the Tribunal fell into jurisdictional error when it made its decision. In his application the Applicant sets out three grounds:
(i)The decision of RRT was an improper exercise of the power conferred by law.
(ii)The decision involved an error of law. The Tribunal only asked me the family questions while that was not the reason I lodged.
(iii)There was no other evidence and other material to justify the decision.
The Applicant did not produce any written submissions and did not add to his application by oral submissions in Court. The Applicant explained to the Court that he was not well and it is clear that he was suffering from some form of upper respiratory tract infection.
The solicitors for the First Respondent Minister filed a written outline of submissions. I note that the Applicant received legal advice from a barrister on the RRT legal advice panel but was not legally represented in these proceedings.
Consequently I will consider not only the grounds raised in his application but whether any arguable case is made out for any form of jurisdictional error.
As to the first ground that the Tribunal decision was an improper exercise of the power conferred by law it does not appear that there was any breach of s.425 of the Migration Act. The Tribunal wrote to the Applicant on 12th December 2006 inviting him to attend a hearing on 7th February 2007. He attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language.
The Tribunal decision makes it clear that the Tribunal told the Applicant that it was having difficulties in accepting his oral evidence and had some doubt as to his credibility. There is no breach of s.424A of the Migration Act in that the reason for the Tribunal's rejection of the Applicant's claims was its finding that he was not a credible witness. The Tribunal did set out on pages 73 and 74 of the Court book the reasons why it had doubts about the Applicant's credibility.
Where a finding of adverse credibility is reasonably open on the evidence before the Tribunal it is the function of the decision‑maker, in this case the Refugee Review Tribunal, to make that finding and it is not subject to judicial review by the Court. It is not necessary to provide detailed reasons as to why the Tribunal does not accept the Applicant as a credible witness, although it is clear in this case that the Tribunal did give reasons as to why it formed this adverse view of the Applicant's credibility. (See ReMinister For Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407).
The Applicant claimed the decision involved an error in law. He has not specified what that error of law is except to say that the Tribunal only asked him family questions which was not the reason why he lodged his application. That is not an error of law and it is quite clear from the text of the decision the Tribunal asked the Applicant questions about the key points of his claim for refugee status.
The Applicant claims there was no evidence or other material to justify the Tribunal decision. The Tribunal does not need evidence upon which to base its finding that it is not satisfied that the Applicant meets the criteria for a visa. The Applicant's submission is misconceived. It is for an applicant to provide evidence to satisfy the Tribunal that he or she does meet the criteria for a visa. There is no obligation on the Tribunal to disprove the Applicant's claims.
I am, on my reading of the Tribunal decision and supporting documentation, unable to discern any jurisdictional error. I am satisfied that no jurisdictional error has been demonstrated and the Tribunal decision is therefore a privative clause decision. Privative clause decisions are described in s.474 of the Migration Act and where a decision is found to be a privative clause decision it is not subject to orders in the nature of certiorari or mandamus 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 in the sum of $2,800.00. The amount sought is a reasonable figure within the Court scale and the Applicant has offered no reason as to why the order should not be made.
I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 18 July 2007
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