SZLGY v Minister for Immigration
[2008] FMCA 431
•7 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLGY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 431 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 474; pt.8 div.2 |
| Applicant: | SZLGY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2735 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 7 April 2008 |
| Date of last submission: | 7 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2008 |
REPRESENTATION
| Applicant appeared in person with Mandarin interpreter |
| Solicitors for the Respondent: | Ms B. Anniwell, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2735 of 2007
| SZLGY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 July 2007 and handed down on 9 August 2007.
The Applicant claims to be from the People’s Republic of China (“China”) and a leader of a market union in Fuqing at which he had worked since October 1999 and been an owner of two stalls since 2004 (“the Applicant”).
The Applicant arrived in Australia on 7 February 2007 having departed legally from Guangzhao Baiyun International Airport on a passport issued in his own name and a business visa issued on 7 May 2007.
On 15 January 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
The Applicant’s claims
The Applicant provided a statement dated 20 March 2007 in support of his protection visa application. The statement is accurately summarised in the written submissions of the First Respondent at paragraph four as follows:
“4. In summary, the applicant claimed to have a well-founded fear of persecution in China by reason of his political opinion. Specifically, the applicant’s claims before the delegate were as follows:
- in 1999 he started a business in fruit retail at Fuqing Fruit Market, having been involved in fruit selling since 1994. In 2004, he bought and owned two market stalls;
- in 2005, the branch office of the Industrial and Commercial Bureau ("Bureau") increased the market's annual administration fee by 30%. There was also a constant increase in other levies and taxes due to government officials were abusing their power;
- about fifty stall owners refused to pay the administration fee and formed a Fruit Sellers’ Union. The applicant and two others were elected as representatives to argue with the government controlled market administration. The applicant collected a petition of fifty-two stall owners which was presented to management. As a result, the protesting stall owners’ fees were increased further;
- on 1 May 2006, the union organised a silent protest of more than 100 stall owners outside the gate of the Bureau. The police became involved. Some of the protesters were wounded and the applicant was detained for three days during which time he was maltreated;
- the stall owners encountered more problems with management. The applicant collected evidence from market stall owners and wrote letters to government authorities;
- on 3 October 2006 the applicant was picked up by police, shown a copy of the letter and asked if he confessed to it. The applicant was beaten with an electric stick. He was released with the help of his wife; and
- he was forced to sell the market stalls and spend money on a passport and visa to come to Australia. He fears inhuman treatment from government officials.”
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Delegate’s Decision
On 7 May 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate found the Applicant’s evidence before it to be “scant” and was not satisfied that the Applicant had “an adverse political profile with the Chinese authorities”.
The Tribunal decision record
On 31 May 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 13 June 2007 the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The letter invited the Applicant to come to a hearing and to send any documents or written arguments he wished the Tribunal to consider.
On 22 June 2007, the Tribunal wrote to the Applicant inviting him to comment on information that may be part of the reason for affirming the decision under review. In particular, the Tribunal referred to the Applicant’s travel on a valid passport issued in his name and stated that the information was relevant because it may cause the Tribunal to find he was of no interest to the authorities in China at the time of his departure from China. The letter also identified information provided by the Applicant in his statement in support of his protection visa application that the Tribunal found to be relevant as to the truth of the Applicant’s claims.
On 3 July 2007, the Applicant responded to the Tribunal’s letter. No further material was provided by the Applicant in support of his application.
The Applicant gave evidence to the Tribunal at a hearing on 25 July 2007 with the assistance of a Mandarin interpreter. The Tribunal noted that the Applicant was represented in relation to the review by a registered migration agent who did not attend the hearing.
The Tribunal noted that the Applicant confirmed the contents of the information provided by him in support of his protection visa application and a business visa application.
The Tribunal noted in detail the various factual assertions made by the Applicant and its exchanges with the Applicant about aspects of his evidence that caused it concern. The Tribunal noted the Applicant’s responses. The Tribunal noted that the Applicant “appeared to have a very selective memory and that he was able to give evidence on some aspects of his claims clearly but not on others”. The Tribunal noted that the Applicant said that he has a problem with his memory, although he remembers the important things.
In particular, the Tribunal noted that the Applicant said that his problems began in 2005, although he did not leave China until the end of 2006. The Tribunal noted that the Applicant said he complained “to the government, the city government and the provincial government, however they could not do anything about his complaints and did not comply”. The Tribunal noted that independent country information before it suggested that something could be done about the Applicant’s complaints and that information before it suggested that the Applicant would not face persecution for complaining about corruption in China.
The Tribunal found the Applicant to be a person who “completely lacked credibility”. The Tribunal found the Applicant to be “evasive” and that there were “significant inconsistencies” between the Applicant’s oral evidence and his written claims, as well as internal inconsistencies in his oral evidence. The Tribunal provided examples of inconsistencies in the Applicant’s evidence and found that the Applicant’s evidence was “inconsistent in so many respects and with respect with matters that were so fundamental to his claims, that the Tribunal finds that the Applicant has not been truthful in his claims and the Tribunal rejects these claims”. The Tribunal found that the Applicant had been provided with “a competent interpreter and that “any inconsistencies were not due to errors in the interpretation”.
The Tribunal then rejected with specificity the Applicant’s factual claims of being involved in organising complaints by fruit sellers about the increase in the market administration fee to the market management, the Industrial Commercial Administration Bureau or the government authorities; and that the Applicant arranged or participated in a protest outside the Bureau. The Tribunal rejected the Applicant’s claims of detention and mistreatment and was not satisfied that the Applicant was of any adverse interest to the authorities during his residence in China or that he left China for the reasons claimed.
The Tribunal noted that it considered the Applicant’s claims separately and cumulatively and found that “if the Applicant returns to China now or in the reasonably foreseeable future, there is no real chance that he will face persecution for his political opinion, membership of a particular social group or for any other Convention reason”.
On 27 July 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 5 September 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant participated in the Panel Legal Advice Scheme.
The Applicant confirmed that he relied on the grounds of his application filed on 5 September 2007, as follows:
“1. The RRT breached the rules of procedural fairness by failing to give me an opportunity to comment on information, which the RRT relied on. Therefore the RRT failed to comply with s.424A of the Migration Act.
2. The RRT failed to take all relevant information into consideration when applying a real chance test in determining whether the applicant will be persecuted by the Chinese government or the local authority in his own town if he returns to China.”
Each of the Grounds was interpreted for the assistance of the Applicant and he was invited to make submissions in support of the grounds and in support of his application generally.
The Applicant made no meaningful submission, other than to say he felt the decision was “unfair”. When the Court asked him what was the information that was the basis of his complaint in both grounds 1 and 2, he replied that he had forgotten.
Ground 1 is not supported by particulars or evidence.
As was referred to above in these Reasons, the Tribunal wrote to the Applicant on 22 June 2007 inviting the Applicant to comment on information that may be part of the reason for affirming the decision under review. The letter identified the information and informed the Applicant of its relevance. The Tribunal’s letter otherwise complied with s.424A(1) of the Act. The Applicant responded to the letter and the Tribunal noted the detail of his response in its reasons.
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the factual claims made by the Applicant; accurately summarised those claims; considered those claims; noted with particularity the oral evidence given by the Applicant at the hearing on 25 July 2007; and, noted matters of concern about the Applicant’s evidence explored by the Tribunal during the hearing and noted the Applicant’s responses. The Tribunal provided a number of examples in its reasons of inconsistencies in the Applicant’s evidence that lead it to find that the Applicant “completely lacked credibility”.
The Tribunal made findings of fact on the evidence and material before it and for which it provided reasons, including the adverse credibility findings. The Tribunal made conclusions based on its findings and applied the correct law to the facts as it found them in reaching its conclusions.
In the circumstances, there was no failure by the Tribunal to comply with s.424A of the Migration Act.
Accordingly, ground 1 is not made out.
Ground 2 is similarly unsupported by particulars and evidence. I refer to paragraphs 30 and 31 above in these Reasons.
A fair reading of the Tribunal’s reasons does not suggest that the Tribunal “failed to take all relevant information into consideration”.
Accordingly, ground 2 is rejected.
Conclusion
The Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 7 April 2008
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