SZKRD v Minister for Immigration
[2008] FMCA 1051
•15 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1051 |
| MIGRATION – Visa – protection (Class XA) Visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant the applicant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of religion – whether Tribunal failed to comply with the requirements of Migration Act 1958 (Cth) s.424A – allegation of bias – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 425, 474 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZKRD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 713 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 July 2008 |
| Date of Last Submission: | 15 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Appearance for the Respondents: | Ms Buchanan |
| 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 $3,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 713 of 2008
| SZKRD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of China. He applies to the Court for a review of a decision of the Refugee Review Tribunal refusing him a protection visa. In his amended application he asks the Court for writs of certiorari, mandamus and prohibition. He relies on four grounds in his amended application:
(1) The Tribunal failed to consider the claims of my application for a protection visa.
(2) The Tribunal's satisfaction that I am not a refugee was not based on a rational and reasonable foundation. The decision was biased.
(3) The Tribunal failed to refer to proper independent information for the consideration of my application.
(4) The Tribunal failed to consider my application in accordance with s.424A of the Migration Act 1958.
The background to this matter is that the applicant arrived in Australia on 17th October 2006. He came in on a false New Zealand passport in the name of another person. He applied for a protection visa on
28th November 2006in his own name. He claimed a fear of persecution because he is the follower of a Buddhist sect called Fojiao. He claims to have been detained and beaten by the police.
A delegate of the Minister for Immigration & Multicultural Affairs, to use the title at the time, refused his application for a protection visa on
2nd December 2006. The delegate considered the applicant's claim to be a follower of Fojiao and considered country information about Buddhism generally. The delegate noted the lack of evidence and detail provided by the applicant and did not accept his claims because the delegate was not satisfied that they were credible. The delegate was also not satisfied that the applicant had made out a credible claim of persecution of an unnamed variant of a Buddhist religion by the authorities in the People's Republic of China.[1]
[1] See Court Book page 63.
The applicant applied to the Refugee Review Tribunal for a review of that decision. His application was lodged on 2nd January 2007. It was accompanied by a typed statement in which the applicant explained the significance of the belief Fojiao. He claimed that it was developing on the basis of Chinese traditional Buddhism, but eliminating drawbacks. He went on to say:
It is also can be noticed[sic] as local Buddhism in Fujian Province. Fujiao's aim is belief in gods advocating helping and loving each other. Our main religion activity is holding a gathering to give lecture about our religion.[2]
[2] See Court Book page 68.
The applicant's statement went on to complain that the Chinese government used religion for domination and he claimed that the government calls his religion superstition and tried to eliminate it.
He claimed in his statement to have experienced ill-treatment when he was arrested and to have been beaten. He claimed that he did not have any chance to explain himself to the immigration officer.
The Tribunal invited the applicant to a hearing and the Tribunal, differently‑constituted, affirmed the delegate's decision not to grant a visa on 4th April 2007. The applicant then sought judicial review of that decision from the Federal Magistrates Court and, on 16th October 2007, Turner FM made orders by consent, issuing writs of certiorari and mandamus, and consequently the application was remitted to the Tribunal.
The Tribunal invited the applicant to attend a hearing on 12th December 2007. He attended that hearing and gave evidence, with the assistance of an interpreter in the Fuqing dialect. After the hearing the Tribunal wrote to him, on 18th December 2007, inviting him to comment on information that the Tribunal considered would, subject to any comments or response that he made, be the reason, or a part of the reason, for affirming the decision under review. That letter set out a number of pieces of information and asked him to provide comments or a response by 14th January 2008.
The applicant replied in writing, by a letter dated 18th January 2008, which was received by the Tribunal on that day. The Tribunal considered the late material, recalled its decision and issued a fresh decision, which was signed on 6th February 2008. The Tribunal handed down its decision on 26th February 2008, affirming the decision not to grant the applicant a protection (Class XA) visa. The Tribunal considered the applicant's claims and evidence from his protection visa application, from the documentary evidence provided to the previous Tribunal to the applicant's evidence to the previous Tribunal. It also considered the s.424A letter sent by the previous Tribunal.
It considered the applicant's evidence at the hearing on 12th December 2007 and the s.424A letter which the Tribunal had sent to the applicant on 18th December 2007. It also considered the applicant's reply.
The Tribunal considered between information about Fojiao, which is set out in the Court Book.
The Tribunal found the applicant to be a citizen of the People's Republic of China, based on his Chinese ID card and driver's licence. He did not produce his Chinese passport and it will be recalled that he entered Australia with a bogus New Zealand passport. The Tribunal noted the applicant's claim that he feared persecution in China because of his religion, which he claimed to be an offshoot of Buddhism and banned in China. The Tribunal noted the applicant's claim that, after a police raid on the temple in which he was in, he went into hiding and travelled to Australia on a false passport. The Tribunal noted his claim to fear persecution because he would be arrested if he returned to China because of his religious beliefs and religious activities.
The Tribunal accepted that the applicant was a follower of Fojiao and attended a Buddhist temple in Australia. It accepted that he belonged to an offshoot of Buddhism but did not accept that he would be targeted by the Chinese authorities, if he returned to China, for being an adherent of the Fojiao religion, either as mainstream Buddhism or as an offshoot of Buddhism. The Tribunal did not accept that Fojiao had been banned by the Chinese authorities, on the basis of the applicant's inconsistent evidence.
The Tribunal found the applicant's evidence to be inconsistent, vague and implausible. The Tribunal said:
The applicant was also internally inconsistent on a number of issues central to his claim that because of his religious beliefs he was arrested, mistreated detained, placed on a wanted list and, as a result, went into hiding.[3]
[3] See Court Book page 143.
The Tribunal noted inconsistencies in a number of parts of the applicant's evidence, which it set out. The Tribunal then said:
The above matters lead the Tribunal to conclude that the applicant is not a witness of truth. As a result the Tribunal does not accept that the applicant is a member or a leader of a religious sect that has been banned by the Chinese authorities. It does not accept that he was arrested or detained for being a member and/or leader, of a banned religion in China. It does not accept that he subsequently went into hiding because the police were looking for him. It follows that it does not accept that he was detained, mistreated, forced into hiding, placed on a wanted list or harmed in any way because of his religious beliefs or that he will be persecuted if he returns to China because of his religious beliefs and activities.[4]
[4] See Court Book page 144.
The Tribunal did not accept there was a real chance that the applicant would be persecuted if he returned to China and was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.
The applicant then sought judicial review of the Tribunal decision, by means of an application and an affidavit filed on 27th March. He filed an amended application on 19th May 2008, in which he claimed that the Tribunal failed to consider his claims, came out with a decision that was not based on a rational and reasonable foundation and was biased, that it failed to refer to proper independent information and failed to consider his application in accordance with s.424A of the Migration Act. The applicant complained to the Court that the Tribunal was biased because the Tribunal did not give him an opportunity to explain his situation. He said the Tribunal did not ask him any questions about the matter, so he did not have an opportunity to explain. He conceded that he had attended a hearing and eventually conceded that he had attended several hearings. He said that he had told the Tribunal that the police had beaten him on the fingers and on the hand and on the head. He complained that his migration agent had made him sign documents in blank and had told him to say to the Tribunal that he did not have a passport, and he complained that he had not received a work visa.
The applicant told the Court, rather surprisingly, that the Department of Immigration had returned his bogus New Zealand passport to him.
If that is the case, that is a matter of some concern because the applicant should not have in his possession a document purporting to be a New Zealand passport to which he is not entitled.
In considering the grounds of his application, the applicant first claims that the Tribunal failed to consider his claims. My reading of the Tribunal decision record shows that the Tribunal did consider his claim to fear persecution in China on the basis of his religious belief and did note his claims that he had been detained and mistreated by the police and had in fact suffered a head injury. The Tribunal considered the applicant's claims to be a fabrication and, as the solicitor for the respondent has pointed out, the Tribunal is not required to refer to each of the applicant's claims in its written reasons (see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs).[5] As I am satisfied that the Tribunal was well and truly aware of the applicant's claims and considered them accordingly, the first ground fails.
[5] (2003) 75 ALD 630
The applicant's second ground attacks the decision for not being based on a rational and reasonable foundation. It also claims bias. Even if irrationality were a ground for establishing jurisdictional error, it is not made out. The Tribunal, basically, did not accept the applicant's claims because it did not believe him. It did not find him to be a witness of truth. There is no lack of rationality or lack of reasonableness in that finding. It was open to the Tribunal to make that finding on the evidence.
The applicant claims that the Tribunal was biased. When asked to explain why the Tribunal was biased, the applicant could only say that the Tribunal did not give him an opportunity to explain his situation and then went on to blame his migration agent. There is nothing to show that the Tribunal acted in a way suggestive of either actual or apprehended bias. Bias is a very serious application which needs to be strictly alleged and strictly approved (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[6]; see also Re Refugee Review Tribunal & Anor; ex parte H & Anor).[7] The claim of bias fails.
[6] (2002) 194 ALR 749 at [42]-[49]
[7] 179 ALR 425 at [27]-[32]
The application claims that the Tribunal did not refer to proper independent information for the consideration of the applicant's claim. The applicant provided no detail to that but, in any event, as the minister has submitted, the selection of independent country information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs).[8] That ground must clearly fail.
[8] [2004] FCAFC 10
The fourth ground claims that the Tribunal failed to consider his application in accordance with s.424A of the Migration Act 1958.
That is just factually wrong. The Tribunal wrote to the applicant on 18th December 2007, setting out a number of pieces of information to the applicant's comments. The letter was clearly intended to comply with s.424A of the Act and a copy of it can be found at pages 112 to 117 of the Court Book. The applicant, through his migration agent, did provide comments in writing, even though they were outside the time. The letter containing the applicant's comments can be found at pages 118 to 119 of the Court Book. The Tribunal made it clear that, even though the letter from the applicant arrived late, the Tribunal still considered the matters and indeed recalled its decision and redrafted the decision to incorporate those matters. There is no breach of s.424A of the Act.
I am mindful of the fact that the applicant is not legally represented. There is no breach of s.425 of the Act. The Tribunal invited the applicant to a hearing. He attended. He gave evidence, with the assistance of an interpreter in the Fuqing dialect. He was given sufficient time to attend the hearing and the matters which were the issues at the hearing, namely the credibility of the applicant's claims, were also the matters that had been considered by the delegate.
There is no breach of s.425. As I have said, there is no breach of s.424A of the Act. I am not satisfied that any jurisdictional error has been shown.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act.
As a privative clause decision, it is not subject to orders in the nature of certiorari, mandamus or prohibition. It follows that the application will be dismissed, with costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 24 July 2008
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