SZKMH v Minister for Immigration

Case •

[2007] FMCA 1312

•

31 July 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKMH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1312
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 a citizen of China claiming fear of persecution for reason of religion – claim to be a member of an underground church – credibility – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 474
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811
SZDXC v Minister for Multicultural & Indigenous Affairs [2005] FCA 1306
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52
SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546
SZGCO v Minister for Immigration & Multicultural & Anor [2007] FMCA 11
Applicant: SZKMH
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1153 of 2007
Judgment of: Scarlett FM
Hearing date: 31 July 2007
Date of Last Submission: 31 July 2007
Delivered at: Sydney
Delivered on: 31 July 2007

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Mr Pinder
Solicitors for the Respondent: DLA Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1153 of 2007

SZKMH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 15th February and handed down on 8th March 2007.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.

  2. By her application and affidavit in support, filed on 10th April 2007, the Applicant seeks judicial review of that decision.  In particular, she asks the Court for an order in the nature certiorari setting aside the Tribunal decision and an order in the nature of mandamus sending her case back to the Tribunal for reconsideration.

  3. I have explained to the Applicant that in order to make those orders the Court must be satisfied that the decision is affected by jurisdictional error.  Insofar as the Federal Magistrates Court is concerned, it has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed. (See SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]).  

Background

  1. The Applicant is a citizen of the Peoples Republic of China who arrived in Australia on 19th August 2006.  She applied to what was then called the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa on 19th September 2006. The Applicant applied on the basis that she had become a Christian in 2002 and attended an underground church regularly. She claimed to fear persecution if she were to return to China because of this.

  2. The delegate refused to grant the Applicant's visa on 20th November 2006. On 19th December, the Applicant replied to the Refugee Review Tribunal for a review of the delegate's decision.  She accompanied her application with a copy of the visa decision record received from the delegate. The Tribunal wrote to the Applicant on 10th January 2007 telling her that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone.

  3. The Tribunal invited the Applicant to attend a hearing on 8th February 2007. The Applicant did not reply to the Hearing Invitation nor did she attend the Tribunal hearing. The Applicant told the Court today that she had been away when the Tribunal's letter arrived, and by the time she received the letter it was too late to attend the hearing. Because the Applicant did not attend the hearing the Tribunal proceeded to exercise its powers under s.426A of the Migration Act to make its decision on review without taking any further action to enable to Applicant to appear before it.

  4. A copy of the Tribunal decision record can be found at pages 77 through to 82 of the Court Book. The Tribunal noted the Applicant's protection visa application and her passport details.  The Tribunal noted the Applicant's claims about her history and how she said she had been introduced to Christianity by a friend and started going to an underground church. She knew that the Chinese government had pronounced her type of church as illegal. 

  5. The Tribunal noted the Applicant's claim that the police raided the church in November 2003 and all the members of the congregation were arrested. The Applicant said that she was said to a police detention centre for two weeks.  She claimed that when she would not write a letter guaranteeing to give up her religion that she was beaten by the police. The Applicant claimed to have been released in December 2003 and warned if she continued with her religious activity that she would be in trouble. The Applicant claimed that as a result of these events her husband became angry with her and they were divorced in February 2005. 

The Tribunal's Findings and Reasons

  1. The Tribunal's findings and reasons can be found at pages 81 and 82 of the Court Book. The Tribunal noted from the Applicant's passport that she was a citizen of the Peoples Republic of China and assessed her claims against that country.  The Tribunal noted the Applicant's claims relating to having become a Christian, but found that the Applicant had given very little detail of how she came to be a Christian and a member of the church's activities. 

  2. The Tribunal noted that the Applicant provided little detail of other key elements of her claim and summarised its finding in this way:

    In short, her application is devoid of details and lacks substance.  On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention.[1]

    [1] See Court Book at page 82

  3. The Tribunal affirmed the decision of the delegate not to grant the Applicant a Protection (Class XA) visa. 

Application for Judicial Review

  1. In her application for review, filed in this Court on 10th April this year, the Applicant sets out three grounds. 

    a)The Tribunal failed to carry out its statutory duty. The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision s.424A of the Migration Act 1958.

    b)The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to China based on the member of a particular social group in China. 

    c)The Tribunal's satisfaction that I am not a refugee was not based upon reason which provided a rational or logical foundation for this belief. 

  2. The Applicant set out two grounds in her application which are basically similar:

    1. The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to China.

    2. The Tribunal failed to carry out its statutory duty. The Tribunal did not properly observe Migration Act 1958 to making a decision.

  3. The Applicant did not file any written outline of submissions but attended Court and made oral submissions.  She confirmed that she had not attended the hearing because she was away when her invitation letter arrived and it was too late one she arrived.  She was not able to indicate why she considered that the Tribunal's finding was not based upon a rational or logical foundation.  She told the Court that she had some difficulties in her country and liked Australia, but accepted that not every application for refugee status was successful. 

  4. The solicitors for Minister filed a detailed written outline of submissions in which it is submitted that the only substantive information for the Tribunal was the Applicant's passport and the statement provided by the Applicant when she applied for her protection visa. It was noted that the application to the Refugee Review Tribunal did not refer to either the passport or the statement. Therefore, neither the passport nor the statement fell within the exception in sub-s.424A(3)(b) of the Migration Act.

  5. Nevertheless, the Minister relies on the decision of Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29] where his Honour, dealing with a similar case where an applicant had not attended the hearing, said:

    The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.

    Thus, the Court found that there was failure to comply with sub‑s.424A(1). 

  6. As to the second and third grounds the Minister submitted that the Applicant had not provided any particulars of either one and that neither ground had any merit.  In dealing with the Applicant's claims, it is quite clear that the reason why the Tribunal affirmed the delegate's decision was because of the lack of information provided by the Applicant. 

  7. The Tribunal had written to the Applicant informing her that on the information before it the Tribunal was not able to make a decision in her favour. That was why the Tribunal invited the Applicant to attend the hearing. The Applicant was, therefore, on notice that the information that the Tribunal had was insufficient to grant her application. 

  8. The Applicant neither attended the hearing nor provided any further written information. In the circumstances it is hardly surprising that the Tribunal remained in a state of unsatisfaction that there was sufficient information to enable the Tribunal to make a decision in the Applicant's favour. (See SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [17] and [18]. SZDXC v Minister for Multicultural & Indigenous Affairs [2005] FCA 1306 at [16]).

  9. There is no breach of s.424A of the Migration Act. The Tribunal's decision was based on the inadequacy and insufficiency of information. As to the allegation that the Tribunal failed to consider the Applicant's chance of persecution based on membership of a particular group, the Tribunal did, indeed, consider the Applicant's claims that she was a Christian and a member of an underground church which was illegal in China. However, the Applicant had not provided sufficient information to satisfy the Tribunal that she had a well-founded fear of persecution for this reason. That ground must fail.

  10. As to the Applicant's claim that the Tribunal's decision was not based on a rational or logical foundation should be made clear that irrationality and illogicality do not of themselves constitute jurisdictional error. (See NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [29] and [30]; NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 at [125] - [127]; SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546; and also SZGCO v Minister for Immigration & Multicultural & Anor [2007] FMCA 11).

  11. In any event, the Applicant has not provided any particulars as to why the Tribunal's decision was either irrational or illogical and, indeed, on the evidence or lack of evidence before it I am satisfied that the Tribunal's decision is the inevitable conclusion.  Based on that material, that ground must fail. 

  12. I am mindful of the fact that the Applicant is not legally represented. 


    I have read through the Tribunal decision and supporting material independently of either Applicant's claims or the Minister's submissions, but I am unable discern any arguable case of jurisdictional error. In the absence of jurisdictional error, the Tribunal's decision is a privative clause decision. (See sub-s.474(2) of the Migration Act). Privative clause decisions are final and conclusion and are not subject to the orders of certiorari or mandamus. It follows that the application must be dismissed.

  13. There is an application for costs on behalf of the First Respondent Minister.  The amount sought is $3,600.00.  As Mr Pinder, for the Minister, points out, costs follow the event and I see no reason why I should not apply that principle in this case.  The Applicant has been wholly unsuccessful in her claim. 

  14. The Applicant seeks another chance, but I am not satisfied that that is relevant to a costs application. I am already of the view that the amount of $3,600.00 is within the scale provided by the Federal Magistrates Court Rules and I note this is a matter that had one First Court Date on 3rd May this year; and one hearing date, namely, today, 31st July 2007.


    I propose to order that the Applicant is to pay the First Respondent’s costs fixed in the sum in the sum of $3,600.00.  

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  7 August 2007


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