SZMAX v Minister for Immigration

[2008] FMCA 723

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMAX v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 723

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 424AA, 425

Applicant: SZMAX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 622 of 2008

Judgment of: Driver FM

Hearing date: 2 June 2008

Delivered at: Sydney

Delivered on: 2 June 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms D Attard
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 622 of 2008

SZMAX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 19 February 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon his practice of Falun Gong. Relevant background facts relating to the applicant's arrival in Australia, his protection visa claims and the decisions of the delegate and the Tribunal on them are conveniently summarised in the Minister's written submissions filed on 29 May 2008. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 3 through to 9 of the Minister's written submissions:

   The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 18 August 2007 on a Tourist (Class TR) visa, valid for two weeks.[1] On 24 August 2007, he lodged an application for a protection visa (PVA) with the Department of Immigration and Citizenship.[2]

   [1] Bundle of Relevant Documents ("RD") at page 27.

   [2] RD 1

   In a one-page statement accompanying his PVA, the applicant claimed to have been a Falun Gong practitioner since 1997.  He claimed that he had travelled to Beijing from his native province of Jiangsu in May 2003 to "clarify the truth to the central government".  He claimed that in June 2003, following his return to Jiangsu, the authorities there detained him for two months to prevent him from returning to Beijing.  He claimed that he was detained again for a further three months in July 2004.  He asserted that he had bribed an official in order to obtain a passport and visa to allow him flee China for Australia.[3]

   [3] RD 28

   Delegate's decision

   On 28 September 2007, a delegate of the Minister refused to grant the applicant a protection visa.[4]  The delegate was not satisfied on the basis of the PVA that the applicant was a Falun Gong practitioner or that he had been arrested and detained as claimed.[5]  The delegate had invited the applicant to attend an interview to substantiate his claims, but the applicant did not attend.[6]

   [4] RD 31

   [5] RD 37

   [6] RD 29, 36-37

   Before the Tribunal

   The applicant lodged an application for review of the delegate's decision with the Tribunal on 29 October 2007.  That application did not expand on the claims made in his PVA.[7]

   [7] RD 39

   On 12 November 2007, the Tribunal invited the applicant to attend a hearing, which was scheduled for 18 December 2007.[8]  On 17 December 2007, the Tribunal received a letter from the applicant requesting an adjournment, asserting that he was suffering from back pain.[9]  The letter was accompanied by a medical certificate.[10]  The Tribunal postponed the hearing until 4 January 2008.[11]  The applicant attended on that day.[12]

   [8] RD 45

   [9] RD 47

   [10] RD 48

   [11] RD 50

   [12] RD 84

   Tribunal decision

   On 19 February 2008, the Tribunal handed down its decision, which affirmed the decision not to grant the applicant a protection visa.[13]  The Tribunal did not accept that the applicant had any association with Falun Gong, or that he would be perceived to have such an association.[14]  It based this finding on:

   (a)the applicant's lack of familiarity with the tenants and history of the Falun Gong movement;[15]

   (b)the applicant's lack of involvement with Falun Gong in Australia;[16]

   (c)the applicant's shifting characterisation of his involvement in Falun Gong, first claiming to be a practised instructor and then claiming to be a beginner;[17]

   (d)the applicant's ability to leave China on his own passport, suggesting that he was not of interest to the authorities;[18] and

   (e)inconsistencies between the information in the applicant's PVA and in his application for a visitor's visa.[19]

   Taken cumulatively, the Tribunal concluded that the applicant was not a credible witness and that he had fabricated the claims in his PVA.  Accordingly, the Tribunal held that the applicant did not face a real chance of persecution should he return to China.

   [13] RD 106

   [14] RD 105

   [15] RD 103-104

   [16] RD 104

   [17] RD 104

   [18] RD 104-105

   [19] RD 105

2. These proceedings began with a show cause application filed on 17 March 2008. The applicant was given an opportunity to amend that application but has not taken up that opportunity. The application sets out three grounds of review in very general terms. The grounds are first, that the Tribunal failed to consider his claims according to law; secondly, that the decision of the Tribunal is illogical; and thirdly, that the Tribunal failed to consider the whole of his relevant information.

3. The application is supported by an affidavit in which the applicant states that he has no intention to go back to China. That is not disputed. I also have before me as evidence a book of relevant documents filed on 24 April 2008.

4. There is no substance to the asserted grounds of review.  In the absence of particulars those grounds are so broad as to be meaningless. The Tribunal decision[20] is, in its terms, a logical consideration of the applicant's claims. There is no indication that any relevant material was overlooked.

   [20] commencing at RD 92

5. The applicant appears to have been properly invited to a Tribunal hearing in accordance with the Migration Act 1958 (Cth) (“the Migration Act”) and he attended a hearing. The Tribunal's concerns about his written and oral claims were put to him at that hearing and he was given the opportunity to respond. The Tribunal was not satisfied with his responses and drew adverse credibility conclusions. The Tribunal's conclusions were open to it on the material before it.

6. The applicant initially indicated a reluctance to make any oral submissions in support of his application. When prompted by me he said that he had suffered a blackout at the Tribunal hearing and was unable to explain himself. The applicant had asserted back pain and was given an adjourned hearing but no other medical concerns are apparent from the evidence. The applicant contests the merits of the Tribunal decision, but that is beyond the scope of this proceeding.

7. Given that the applicant is not legally represented, I have myself considered whether the available information discloses any arguable case of jurisdictional error. The Tribunal decision[21] discloses that the Tribunal relied in part on information derived from a visitor visa application made by the applicant to enter Australia. That was not information derived from the applicant for the purposes of his review application and it was information about the applicant personally. The information was adverse in the sense that it contained details inconsistent with his protection visa application. The inconsistency supported in part the adverse credibility findings made by the Tribunal.

   [21] RD 105

8. It is arguable that the information derived from the visitor visa application required disclosure to the applicant pursuant to s.424A of the Migration Act. There was no written disclosure of that information. The solicitor for the Minister submits that no disclosure was required because the inconsistencies between the information in the visitor visa application and the information in the protection visa application were not “information” for the purposes of s.424A. That may well be right, but it is also arguable that the inconsistencies required disclosure in order to ensure a fair hearing for the purposes of s.425 of the Migration Act.

9. Having perused the Tribunal decision, I am satisfied that if disclosure of the protection visa information was required, either pursuant to s.425 or s.424A, the Tribunal met its obligations pursuant to s.424A(2A) and s.424AA.

10. I am satisfied from the description of what occurred at the Tribunal hearing at RD 99 to 101 that the Tribunal embarked upon a course of oral disclosure pursuant to s.424AA. I am satisfied from what appears at RD 100 that that disclosure included a clear description of the information derived from the visitor visa application and the significance of that information. I am also satisfied, from what appears at RD 101 that the applicant was invited to comment and told that he could seek time for further comment. I am satisfied on the face of the Tribunal decision that the Tribunal met any obligations it may have had pursuant to s.424AA and s.424A(2A) of the Migration Act.

11. I conclude that there is no arguable case of jurisdictional error in the Tribunal decision. I will therefore dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules2001 (Cth) (“the Federal Magistrates Court Rules”).

12. The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant told me that he understood costs would only be $400. He said that he would have difficulty paying a larger amount. I will not require payment of costs by any particular time. However, I see no reason to depart from the Court scale in this matter.

13. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  11 June 2008