SZLYJ v Minister for Immigration
[2008] FMCA 460
•8 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 460 |
| 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 is a citizen of China claiming fear of persecution for reason of religion – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 424AA ,425 |
| Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 |
| Applicant: | SZLYJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 269 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 April 2008 |
| Date of last submission: | 8 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms Baggett |
| 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 $4,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 269 of 2008
| SZLYJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, who is a citizen of China, applies to the Court for judicial review of a decision of the Refugee Review Tribunal. The Tribunal handed down its decision on 10th January 2008 affirming the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant asks the Court for orders in the nature of certiorari and mandamus quashing the decision of the Refugee Review Tribunal and sending his application back to the Tribunal for determination according to law. The Applicant claims that the Tribunal committed jurisdictional errors of law in that it denied him procedural fairness.
The First Respondent, who is the Minister for Immigration & Citizenship, has filed a Response opposing the making of those orders and claiming that the Applicant's application does not show a reasonable cause of action.
Background
By way of background, the Applicant arrived in Australia on 23rd May 2007. He applied for a Protection (Class XA) visa on 8th June 2007. He made two claims for protection:
a)First, he claimed that he had come under adverse notice because he and his wife had had another child in contravention of China's one child policy.
b)Second, he claimed to have a well-founded fear of persecution because of his religious belief.
The Applicant claimed to be a member of an underground or home church which is not recognised by the government. He claimed that in September 2004 he was arrested by the PSB and badly beaten up. He was released after 48 hours but he claimed to have been dismissed from his employment. He later claimed that he was detained for 12 months and was constantly harassed and threatened after his release.
A delegate of the Minister for Immigration & Citizenship refused his application for a visa on 20th August 2007. The delegate considered the Applicant's claims to fear persecution in China because of his involvement in underground Christian activities and did not find the Applicant's claims to be credible. The delegate did not accept that the Applicant had ever been detained because of his involvement in underground Christian activities in China or that he was ever mistreated by the police.
The delegate noted the fact that the Applicant had given "markedly contrasting information concerning his personal and material circumstances in support of his two visa applications". The delegate went on to note that:
The information the applicant supplied in support of his visitor visa application is irreconcilable with the material in his Protection visa claim. These inconsistencies cast doubt on the applicant's claim to have lost his job in 2004 because of his religion.[1]
[1] See Court Book at page 75
The delegate referred to a letter from the Tianjin China Travel Service which carried out an investigation on the Applicant's circumstances following the Applicant's sudden departure from the tour group with which he travelled to Australia. The information in that letter was put to the Applicant at interview with the Minister's delegate for comment and the Applicant claimed that he had been forced to lie in order to obtain his visa.
When the delegate pointed out that the information concerning the Applicant's employment and earnings had been verified through an interview with his wife after he left the tour group, the Applicant denied that the findings of the investigation were correct and reiterated his claims. The delegate did not accept the Applicant's denial and did not consider the Applicant's claim concerning the funding of his travel to be plausible.[2]
[2] See Court Book at page 75
Application for Review by the Refugee Review Tribunal
After the delegate refused the Applicant's application for a protection visa, the Applicant then on 24th September 2007 applied to the Refugee Review Tribunal for a review of the delegate's decision. The Applicant did not supply any other documentary evidence to the Tribunal at the time he lodged his application for review.
The Tribunal wrote to the Applicant and invited him to attend a hearing which took place on 13th December 2007. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language. He provided his passport to the Tribunal and a copy was made and returned.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 18th December 2007 and handed that decision down on 10th January 2008. A copy of the Tribunal decision record can be found at pages 107 to 116 of the Court Book.
In that decision the Tribunal set out the Applicant's claims and evidence at pages 110 through to 114. The Tribunal provided a detailed summary of the Applicant's oral evidence to the Tribunal and noted the information from the Tianjin China Travel Service and put this information to the Applicant. The Tribunal described the questioning as follows:
The Tribunal observed that the information contained in the travel agency's letter and the applicant's own claims about his employment background and financial position could not both be correct. The Tribunal said that if the Tribunal accepted the information contained in the travel agency's letter the information would be a reason for affirming the delegate's decision to refuse his visa application; the Tribunal said that this was because the information raised doubts about the credibility of the applicant and the truthfulness of his claims. When asked by the Tribunal whether he wished to make any further comments on the information or whether he needed more time to provide comments, the applicant re-affirmed that he stood by his own claims.[3]
[3] See Court Book at page 112
The Tribunal noted information from the Australian Department of Foreign Affairs and Trade which advised that people who had come to the adverse attention of the government of the People's Republic of China would experience difficulty in obtaining a legal passport[4].
[4] See Court Book at page 113
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons, which are set out at pages 114 and 115 of the Court Book, noted the Applicant's claims for protection:
a)because of the contravention by the Applicant and his wife of China's one child policy; and
b)because of the Applicant's involvement in family or underground church activities in Henan Province.
The Tribunal was not satisfied that the Applicant's claimed fear of persecution for past and possible future breaches of the one child policy was well-founded and did not meet the requirements of s.36(2)(a) of the Migration Act. The Tribunal said:
In relation to the applicant's claimed fear of further persecution because of past or future contravention of China's one child policy, the Tribunal notes that the enforcement of the generally applicable law such as that applying to China's one child policy does not ordinarily constitute persecution for the purposes of the Convention for the reason that enforcement of such a law does not ordinarily constitute discrimination.[5]
[5] See Court Book at page 114
The Tribunal then went on to consider the Applicant's claimed fear of persecution for reason of his religion. However, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for that reason. The Tribunal set out its reasons as follows:
a)The information from the Tianjin China Travel Service that was inconsistent with the Applicant's claims;
b)The Tribunal's strong doubts about the Applicant's overall credibility and the truthfulness of his other key claims based on its conclusion that the Applicant had provided false information about his employment history and financial consideration;
c)the Applicant's poor knowledge of the Bible when questioned at the hearing, which the Tribunal considered to be inconsistent with his claimed active involvement in spreading the gospel in China.
d)Based on the advice from the Australian Department of Foreign Affairs and Trade, the Tribunal considered the fact that the Applicant was issued with a passport in his name and travelled to Australia without difficulty provided additional evidence that he was not of adverse interest to the Chinese authorities. That evidence the Tribunal considered cast further doubt on the bases of the Applicant's claimed fear of persecution.
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and therefore did not satisfy the criterion set out in sub-section 36(2)(a) of the Migration Act for a protection visa.
The Tribunal therefore affirmed the decision not to grant the Applicant a visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court for judicial review of the Tribunal decision by filing an application and an affidavit in support on 6th February 2008. The Applicant gives one ground for relief in his application:
The Refugee Review Tribunal committed jurisdictional errors of law in that it denied the applicant a procedural fairness.
In his supporting affidavit the Applicant claimed:
The Refugee Review Tribunal committed a legal error since it denied me of a fairness during the hearing.
The Applicant’s Submissions
The Applicant did not file any written submissions, but he attended Court and told the Court that he felt he had not received procedural fairness because he was not asked many questions by the Tribunal. He believed that the hearing was only a short one and only lasted about 50 minutes. I note from the Tribunal hearing record that the hearing lasted 1 hour and 10 minutes. But, in any event, that is not a lengthy hearing.
The Applicant also made a claim that he had not been able to give all the evidence in support of his claim to the Tribunal Member. The Applicant did not provide any affidavit evidence or any transcript of the hearing in support of that claim.
The First Respondent’s Submissions
For the Minister, Ms Baggett, solicitor, has filed a written outline of submissions in which she sets out the Tribunal's obligations to provide procedural fairness which are set out in Division 4 of Part 7 of the Migration Act. She referred the Court to the provisions of s.422B of the Migration Act and noted that apart from the legislative provisions, common law procedural fairness was otherwise expressly excluded (see Minister for Immigration & Multicultural Affairs v Lay Lat[6] and SZCIJ v Minister for Immigration & Multicultural Affairs & Anor[7]).
[6] [2006] FCAFC 61
[7] [2006] FCAFC 62
Ms Baggett also put to the Court that the information which the Tribunal found so damaging to the Applicant's case, namely the information from the Tianjin China Travel Service, was in fact put to the Applicant in accordance with the provisions of s.424AA of the Migration Act. She submitted that the decision record shows that the Tribunal complied with the requirements of that section.
She went on to submit that the Tribunal had complied with its obligations under s.424AA(b) and therefore s.424A(2A) applied and the Tribunal was not obliged to issue a written s.424A invitation with respect to that information. She also submitted that the Tribunal had proceeded upon the basis that the information in the travel agency's letter was capable of giving rise to s.424A obligations, but the information in the letter was not capable of undermining, denying or rejecting the Applicant's claims to be entitled to the grant of a protection visa (see SZBYR v Minister for Immigration & Citizenship[8]). It was only when the Tribunal compared the information in that letter with the Applicant's oral evidence and identified its inconsistency that it drew adverse inferences against the applicant's credibility.
[8] [2007] HCA 26 at [17]-[18]
Ms Baggett also submitted that the Tribunal had not breached s.425 of the Migration Act in the manner found by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[9]. She submitted that the issues had been made clear to the Applicant and that there was no breach.
[9] [2006] HCA 63
Conclusion
The Applicant complains to the Court that the hearing was relatively short and he was not asked many questions. I accept the fact that the hearing lasted for an hour and 10 minutes, but the Applicant has not provided any evidence to show that the Tribunal did not consider what he had to say or that he was somehow restricted in giving evidence. He has not provided any affidavit or any transcript. Accordingly, I am not in a position to go behind the information in the Tribunal decision record.
It is a fact that procedural fairness and the natural justice hearing rule are governed by the provisions of s.422B of the Migration Act and those obligations are set out in Division 4 of Part 7 of the Migration Act. I am not of the view that the Applicant has been denied procedural fairness. He was invited to a hearing. He attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language. The issues that were put to him at the hearing relating to the inconsistency of his evidence with what he had put in his application for a visa were issues that had been dealt with by the delegate when refusing his application. There is no evidence that the Tribunal seized on some other issue of which the Applicant could not have been aware or forewarned.
I am satisfied that the Tribunal complied with the requirements of s.424AA of the Migration Act. That section came into operation on
29th June 2007. That section relevantly provides as follows:
Section 424AA - Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
I am satisfied that the Tribunal did in fact act in this way.[10]
[10] See Court Book at page 112
In my view, the Applicant has not made out any jurisdictional error. He has not been legally represented in these proceedings and I have examined the Tribunal's decision independently of the Applicant's claims and, for that matter, independently of the Respondent's contentions and I am unable to discern any other arguable jurisdictional error.
It follows that the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. As such, the Tribunal decision being a privative clause decision is final and conclusive and it is not subject to orders in the nature of certiorari and mandamus which the Applicant seeks. It follows, therefore, that the application must be dismissed.
There is an application for costs. I am satisfied that it is appropriate in the circumstances as the Applicant has been unsuccessful in his claims. The amount of $4,600.00 is an appropriate figure.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 10 April 2008
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