SZLYU v Minister for Immigration
[2008] FMCA 528
•14 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 528 |
| MIGRATION – Visa – protection (Class XA) 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 religious beliefs – no reviewable error. |
| Migration Act 1958 (Cth), s.91R, 424, 425 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZLYU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 298 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 April 2008 |
| Date of Last Submission: | 14 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2008 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Snell |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondents costs fixed in the sum of $4400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 298 of 2008
| SZLYU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of the People's Republic of China. He has applied to the Court for judicial review of a decision of the Refugee Review Tribunal that was signed on 28 December 2007 and handed down on 24 January 2008. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant the applicant a protection visa.
The applicant now asks the Court to make the following orders:
(1)An order in the nature of certiorari quashing the decision of the Refugee Review Tribunal; and
(2)An order in the nature of mandamus requiring the Refugee Review Tribunal to review the decision of the delegate according to law.
The lawyers for the Minister, who is the first respondent to the application, have filed a response in which they make two claims:
(1)The application for judicial review does not provide any particulars or any legal ground of review; and
(2)The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal handed down on 24 January 2008.
Background
By way of background, the applicant arrived in Australia on 12 July 2007. He applied for a protection (Class XA) visa on 22 August 2007. He claimed in his application to fear persecution if he returns to China on the basis that he is a Christian.
The Minister's delegate wrote to the applicant on 11 September 2007 inviting him to attend an interview on Wednesday 26 September. The delegate noted that the applicant did not attend the interview. The delegate proceeded to make a decision and was not satisfied on the basis of the inadequate information provided that the applicant was a genuine Christian. Accordingly, the delegate refused the application for a visa on 27 September 2007.
The applicant then applied to the Refugee Review Tribunal on 23 October 2007 for a review of that decision. The applicant did not provide any other documentary material to the Tribunal with his application. The Tribunal wrote to the applicant on 31 October inviting him to attend a hearing at 11.30 am on 28 November 2007. The applicant or more likely his migration agent completed a Response to Hearing invitation indicating that he did wish to attend the hearing and required an interpreter in Fujian (Mandarin).
The applicant did not attend the hearing at 11.30 and the Tribunal hearing record shows that the interpreter left at 12.20 pm on that day. The hearing record shows that the applicant then arrived at 12.58 pm. The Tribunal decision record shows that an attempt was made to commence the hearing but the matter was adjourned until the following day. The applicant gave evidence with an interpreter in the Mandarin language.
The applicant brought with him his passport and a letter from the Minister from the Padstow Chinese Congregational Church. He presented those documents to the Tribunal. The applicant gave evidence to the Tribunal. The Tribunal signed its decision on 28 December 2007 and handed that decision down on 24 January 2008. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa. A copy of the Tribunal decision record can be found in the Court book at pages 64 through to 79. The Tribunal sets out the applicant's claims and evidence based on the statement that the applicant attached to his application for a protection visa and sets out the evidence at the resumed hearing on 29 November 2007.
The Tribunal also consulted independent country information about the Christian group referred to as The Shouters and a summary of that independent information can be found in the Court book at pages 72 through to 75.
The Tribunal’s Findings and Reasons
In the Tribunal's findings and reasons the Tribunal accepted that the applicant was a Chinese national based on his passport which was issued in the Peoples Republic of China. The Tribunal noted the applicant's claim that his mother and father were Christians, that he went to church regularly and became a member of The Shouters church in China in 1995.
The Tribunal noted the applicant claimed that he had been questioned for attending Shouters gatherings and his father had been questioned and detained by the police for his attendance. However, the Tribunal did not believe the applicant's claims. The Tribunal said:
The Tribunal is of the view that the applicant is not a witness of truth and for the reasons that follow the Tribunal does not accept that the applicant is a member of The Shouters church in China, that he attended Shouters gatherings in China, that he was questioned for attending Shouters gatherings or that his father was questioned or detained for his attendance at Shouters gatherings. Further, the Tribunal does not accept that the applicant is or was a Christian[1].
[1] Se Court Book at page 76
The Tribunal noted that there were significant inconsistencies between the applicant's evidence in his protection visa application and his evidence at the hearing. The Tribunal also noted that although the applicant had claimed to have been a member of The Shouters church since 1995 he was not able to give even basic details about the principals and beliefs of The Shouters in evidence to the Tribunal.
The Tribunal said:
However, the Tribunal would expect someone who claims to have become a Shouter in 1995 and who claims to have attended weekly gatherings since that time to be able to articulate at least some detail in relation to the particular beliefs and practises of Shouters. The Tribunal finds the applicant's almost non existent knowledge to be highly inconsistent with his claim to have been a practising Shouter in China since 1995[2].
[2] See Court Book at page 76 - 77
The Tribunal went onto consider the applicant's claim to practise Christianity in Australia, especially his claims to have attended church services since he has arrived in Australia. The Tribunal noted the applicant's letter from the Padstow Chinese Congregational Church confirming that he had worshiped there. Whilst the Tribunal was prepared to accept that the applicant had attended church services in Australia, the Tribunal was not satisfied for the purposes of s.91R(3) of the Migration Act that the applicant had attended church services in Australia otherwise than for the sole purpose of strengthening his claim to be a refugee.
The Tribunal did not accept that the applicant had been or was perceived to have been associated with The Shouters church or with Christianity in China or that he had suffered serious harm in China as a result of this association. The Tribunal did not accept that if the applicant were to return to China there was a real chance that he would be perceived to be a member of The Shouters church or a Christian or a member of a Christian religious organisation. In short, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if he were to return to China.
Application for Judicial Review
The applicant commenced proceedings for judicial review of the Tribunal decision by means of an application and an affidavit in support filed on 11 February 2008. In the application the applicant sets out only this ground:
The Refugee Review Tribunal committed jurisdictional errors of law.
The applicant has not filed any amended application or any written outline of submissions. He attended Court and made oral submissions. He claimed that he cannot go back to China because of his father and mother. They are old people and in poor health. If he were detained his parents would break down. He told the Court that he wished to remain in Australia and he could not return to China because of his religious beliefs.
The applicant's submissions related completely to a challenge to the Tribunal's findings. He claimed the Tribunal did not believe his evidence, which is correct, and said that the decision was not fair because of that. He told the Court that he was telling the truth and that his refugee claim was genuine. The applicant did not provide any detail of any jurisdictional error in the Tribunal decision and his submissions are, with respect, no more than an invitation to the Court to undertake a merits review of his factual claims. The applicant did claim that the interpreter at the hearing spoke Mandarin with a Cantonese accent but did not provide any evidence by way of a transcript or an affidavit indicating that he was not able to understand that person.
I am mindful of the fact that the applicant is not legally represented. He is, as he told the Court, illiterate. Accordingly, it is appropriate to consider whether any arguable case for jurisdictional error can be found.
I am certainly of the view that the Tribunal's finding that the applicant was not a witness of truth is a finding that was open to it on the evidence. The Tribunal gave reasons as to why it found the applicant's credibility to be so shaky including his almost non existent knowledge of the practises and beliefs of the church to which he claimed to belong, as well as the inconsistencies in his claims. In my view, there is no jurisdictional error in that regard. I am not satisfied that the applicant has shown any procedural unfairness in his claim that an interpreter spoke Mandarin with a Cantonese accent. There is no evidence to show that the applicant was not able to make himself understood or was not able to understand the proceedings.
The applicant has sought a merits review of the Tribunal's factual findings but the Court cannot review the merits of the Tribunal decision[3]. The Tribunal's findings were open to it on the available evidence and for the reasons given by the Tribunal.
[3] see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259-272
Mr Snell who appeared for the Minister has made a very helpful submission on the operation of s.424AA of the Migration Act. The submission to my mind is correct at law and I propose to adopt it. In brief, he said:
As the application for review was lodged with the Tribunal on 23 October 2007 it was subject to the amendments introduced by the Migration Amendment (review provisions) Act 2007. Included in those amendments were s.424AA and it is apparent from the Tribunal decision record (Court Book 70.4-72.5) that the present Tribunal purported to act in accordance with the requirements of s.424AA. Whilst the Tribunal did not specifically refer to s.424AA, that section provides that, 'The Tribunal may orally give to the applicant clear particulars of any information the Tribunal considers would be the reason or part of the reason for affirming the decision under review'. Section 424AA(b) imposes certain requirements where the Tribunal gives particulars of any information to the applicant orally at the hearing. It is also apparent from the decision record that the present Tribunal complied with those requirements by ensuring as far as was reasonably practicable that:
a) the applicant understood why the information was relevant to the review and the consequences of the information being relied upon in affirming the decision under review (s.424AA(b)(i));
b) the applicant was orally invited to comment on or respond to the information (s.424AA(b)(ii));
c) applicant was advised that he could seek additional time to comment on or respond to the invitation (s.424AA(b)(iii)); and
d) as the applicant sought additional time to comment on or respond to the information the Tribunal adjourned the review for half an hour (s.424AA(b)(iv)).
In my view that submission is correct in law. There is no breach of s.424AA of the Migration Act or in my view s.424A. There is no breach of s.425 of the Migration Act and because the Tribunal invited the applicant to attend the hearing and provided him with an interpreter notwithstanding his comment that the interpreter spoke with a Cantonese accent, there is no evidence that the applicant was not able to understand or be understood at the proceedings. The delegate's decision was made on the basis that the applicant has not substantiated his claim to be a genuine Christian due to the inadequacy of the information supplied especially bearing in mind the fact that the applicant did not attend the interview appointed for that purpose.
The Tribunal decision where the applicant did attend the hearing was based almost entirely on the applicant's lack of credibility. The Tribunal considered independent country information in some detail about The Shouters in China and was not satisfied that the applicant had demonstrated even a basic knowledge of The Shouters believe. That is entirely a matter for the Tribunal.
In my view, there is no jurisdictional error shown. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. Privative clause decisions are final and conclusive and not subject to orders in the nature of certiorari of mandamus which the applicant seeks. It follows that the application must be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 23 April 2008
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