SZKQR v Minister for Immigration
[2007] FMCA 1845
•29 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKQR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1845 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – no lack of procedural fairness demonstrated. |
| Migration Act 1958, ss.424A, 425, 441C, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicant: | SZKQR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1571 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 29 October 2007 |
| Date of Last Submission: | 29 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2007 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondents: | Mr. M. P. Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicant be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1571 of 2007
| SZKQR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he engaged in political activities. He alleges that while in China he and his friends distributed and posted leaflets about the “4 June Massacre” and that this subsequently led to his friends being detained and him fleeing to escape arrest. The applicant left China for Australia where, he alleges, he has discovered the true meaning of freedom and democracy.
The applicant claims to fear persecution in China because of his political opinion and activities.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
10 November 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 12 of the Tribunal’s decision (Court Book (“CB”) pages 85 – 93). Relevantly, those facts are in summary:
a)during a trip to Hong Kong, the applicant found a set of books called “June Fourth: The True Story” (“books”);
b)after the applicant read the books, he felt angry and upset and at the beginning of 2006, he, with two named friends and several unnamed friends, got together in his house. They were all dissatisfied with the Chinese government’s ways of solving problems;
c)the applicant told his friends what he had learnt from the books he had come across;
d)his friends were all shocked because they could hardly accept what the Chinese government had done;
e)the applicant and his friends decided that they needed to make more Chinese people understand the truth;
f)they decided to copy chapters from the books, such as “June Fourth Massacre” to distribute;
g)through the endeavours of the applicant and his friends, more and more people were interested in their materials, so that more and more people participated in their gatherings. The applicant claimed that everyone could fully express their thoughts;
h)prior to the 2006 anniversary of the events of 4 June, the applicant and his friends decided that they wished to commemorate that day, and they decided to post and distribute leaflets in public announcement areas and other public places;
i)they did this and the government was angered by their conduct and it sent people “urgently to clear our leaflets”;
j)the police formed a special investigation group and people were detained and questioned;
k)rewards were also offered for those who provided information about the group;
l)the police arrested and detained two of the applicant’s friends and the police also attended the applicant’s house to arrest him as they believed that he was the leader;
m)the applicant was scared and moved to the home of his aunt or cousin in Guangzhou;
n)the applicant’s family business store was closed down by the police; and
o)the applicant travelled to Australia and fears that if he returns to China he will be arrested and persecuted.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not find the applicant credible in relation to the material aspects of his claims, finding his evidence to be implausible, contradictory, inconsistent and, at times, vague;
b)the basis of the Tribunal’s finding that the applicant was not truthful was:
i)the applicant claimed to see the police searching his house but did not know what they took and then said that there was nothing to take as anything incriminating was at his business;
ii)the applicant gave inconsistent evidence about when his shop was closed by the police, saying variously that it was at the very beginning of July 2006 or two or three days after he arrived at his cousin’s home, which was about the middle of June;
iii)the applicant gave inconsistent evidence about whether or not he visited his business premises after he went to live at his cousin’s house;
iv)at the Tribunal hearing the applicant said that he first discussed the books with his friends at a restaurant but in his protection visa application he stated that they first discussed the books at his home;
v)the applicant was vague about the content and layout of the pamphlets he distributed and who was involved in the preparation of the leaflets;
vi)at the Tribunal hearing the applicant claimed that despite finding out that his friends had been arrested on 4 June 2006 he continued to reside at his parent’s home and continued to go to his workplace until the middle of June 2006; and
vii)the applicant gave evidence that he had had no difficulty leaving China with a passport in his own name;
c)given its findings which are set out in these reasons, the Tribunal was not satisfied that:
i)the applicant had been involved in political activities which led to an adverse interest in him from the Chinese authorities;
ii)he was involved in providing leaflets setting out information about the Chinese authorities’ actions on 4 June 1989;
iii)he was or is currently wanted by the Chinese authorities for any Convention reason;
iv)his two friends were detained and sentenced to terms of imprisonment;
v)his shop was closed down by the authorities; and
vi)he has a well-founded fear of persecution for a Convention reason.
Proceedings in this Court
The grounds of the application filed in these proceedings are pleaded in the following terms:
1. RRT decision was unfair to my application for a protection visa. I was prosecuted [sic] in my country.
2. I don’t believe that I didn’t meet the Conventions related reason of prosecution [sic] and not a refugee.
Dealing with each of these grounds in turn:
“RRT decision was unfair”
On the face of it, this ground seeks merits review. The Tribunal is the body charged with the task of determining what the facts of the case are. Using those findings, it then makes a decision on whether an applicant's claim has merit and deserves to succeed. That is the role of the Tribunal. The role of the Court is to ensure that the Tribunal applies the correct procedures when making its findings and expressing its reasons. The Court is concerned with the fairness of the Tribunal's processes, not with the fairness of the result of the Tribunal's deliberations. So, to the extent that the applicant wants the Court to review the merits of his claims, he must be unsuccessful, because the Court cannot do that.
To the extent that the applicant's allegation involves an assertion of procedural unfairness, it, too, is not made out. Such an allegation may be considered by a number of criteria. In the way that the applicant has pleaded his application, perhaps he is saying that the Tribunal's finding was illogical or irrational. A consideration of the Tribunal's decision record makes it clear that it approached its task with appropriate thoroughness, set out the information which it had before it, analysed that information, and came to a conclusion which was open to it. The conclusion which the Tribunal reached and the findings of fact which underpin that conclusion were logical and rational. Consequently, to the extent that any illogicality or irrationality is alleged by the applicant, it is not made out.
The natural justice hearing rule, which forms part of the Tribunal's obligations to afford procedural fairness, is codified in div.4 of pt.7 of the Act and it may be that the applicant alleges a breach of some of the sections of that division.
Certainly, in his submissions today, the applicant has suggested that the Tribunal failed to provide him with a s.424A(1) notice. In relation to that issue, the s.424A(1) letter which the Tribunal sent to the applicant is reproduced at CB 75 and 76. In light of the contents of that letter and its timing, it seems fairly clear that the authority of SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 means that the letter need not have been sent. So, the Tribunal was actually under no obligation to send a s.424A(1) letter in any event. However, having done so, it did so in the way which was prescribed by the Act.
Although a file note or case note of a conversation between the applicant and an official of the Tribunal is reproduced at CB 77, where the applicant says he did not receive a copy of the s.424A(1) letter, the following matters should be noted:
a)the letter is addressed to the applicant at the address which he identified in his application for review to the Tribunal as being his address for correspondence (see CB 55);
b)annexed to the affidavit of Miriam Mafessanti sworn 18 October 2007 is a screen dump of information held by the Tribunal which indicates that a s.424A letter dated 15 February 2007 was sent by post on 15 February 2007. As to the probative value of that document and its admissibility, I observe that the case number appearing towards the top of that document is the same number which was allocated to the applicant's case at the Tribunal and I note that the document is expressed to have been created by the same Tribunal officer who signed the s.424A letter. I am therefore satisfied that the s.424A letter was sent by post to the applicant on 15 February 2007; and
c)
s.441C(4) provides that the letter is taken to have been received by the applicant seven working days after the date of the document which, in the circumstances of this case, was
26 February 2007.
Consequently, in the event that the Tribunal did have an obligation to send a s.424A(1) notice to the applicant, that obligation was discharged. As to the content of the letter, it also meets the criteria of s.424A(1).
Another principal section found in div.4 of pt.7 of the Act is s.425. The significance of that section has not been argued by the applicant. In any event, as is apparent in these reasons, the Tribunal's decision was one based on its findings concerning the applicant's credibility and as conclusions, inferences and matters of that sort do not amount to information for the purposes of s.425, no breach of that section has been disclosed by the applicant.
As to the other provisions of the division, it is not apparent that any other one of them is of any particular importance in this application and it has not been shown that any jurisdictional error has been committed by the Tribunal in relation to any of them.
"I met the Convention's criteria"
The second ground pleaded by the applicant in his application is also in the nature of a claim for merits review. For the reasons already given, a review of the merits of the applicant's claim is not available in this Court in these proceedings. Thus, this ground does not disclose jurisdictional error on the part of the Tribunal.
Conclusion
Because jurisdictional error on the part of the Tribunal has not been demonstrated by the applicant, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 15 November 2007
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