SZMLK v Minister for Immigration - [2008] FMCA 1233

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMLK v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1233

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

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.422B, 424A

Applicant:

SZMLK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1642 of 2008

Judgment of:

Driver FM

Hearing date:

1 September 2008

Delivered at:

Sydney

Delivered on:

1 September 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms C Kelso
Australian Government Solicitor

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
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 1642 of 2008

SZMLK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 3 June 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
Background information concerning the applicant's protection visa claims and the Tribunal decision on them are set out in the Minister's outline of written submissions filed on 22 August 2008. I adopt as background for the purposes of this judgment paragraphs 3 through to 9 of those written submissions:
The applicant, a citizen of China from Fujian Province, arrived in Australia on 1 September 2007 and submitted an application for a protection (Class XA) visa to the Department of Immigration and Citizenship ('DIAC') on 12 October 2007 (relevant documents “RD” 3-27). The applicant's claims for protection were set out in a handwritten statement in Chinese submitted with the application (RD 32-35) a translation of which was subsequently provided to DIAC on 26 October 2007 (RD 65-66). The application was refused by a delegate of the Minister on 7 January 2008 (RD 69-78).
The applicant submitted an application for review to the Tribunal on 5 February 2008 in respect of the delegate’s decision (RD 79-82). The applicant attended a hearing before the Tribunal on 1 April 2008 and was assisted by a Mandarin interpreter in the Fujian dialect (RD 96-97).
On 4 April 2008 the Tribunal invited the applicant to comment on or respond to information that it considered would be the reason, or part of the reason, for affirming the delegate's decision (RD 107-110). The applicant responded in writing on 28 April 2008 (RD 111-114).
The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa in a decision signed on 14 May 2008 and handed down on 3 June 2008 (RD 126-141).
Applicant’s claims
In summary, the applicant claimed to fear persecution for reason of his political opinion. He claimed that in 2006 he was involved in attempts to block the demolition of houses, including his own, to make way for the construction of a new railway through his local town. The applicant claims that he was chosen by the villagers to lead these activities and was detained by authorities on two occasions. The applicant claimed that he would be arrested if he returned to China.
Tribunal’s findings and reasons
In affirming the delegate's decision, the Tribunal found that the applicant was not a reliable, credible and truthful witness having regard to the implausibility of his claims, inconsistencies in his evidence and other matters. The Tribunal found that:
a)the applicant's oral evidence in relation to his work history was inconsistent with his written claims;
b)the applicant's evidence in relation to being chosen as a leader by the villagers was unconvincing and implausible;
c)the applicant did not provide an adequate explanation as to why he was not forcibly evicted and his house demolished prior to his departure from China or why there had been a delay between the alleged demonstrations in his village and his alleged detention by the authorities on two occasions;
d)there was some suggestion that copies of Administrative Punishment Decisions submitted by the applicant were fraudulent and had been manufactured to enhance his protection claims and the authenticity of a Detention Warrant submitted by the applicant was doubtful;
e)the applicant shifted his oral evidence in relation to how he had obtained a passport and his evidence that he had paid bribes to secure his departure from China lacked credibility; and
f)consistent with independent country information, the applicant would not have been able to leave China unhindered if he had been detained on two occasions and issued with a Detention Warrant soon after he left.
The Tribunal rejected the entirety of the applicant's claims and noted that he was not a credible witness and had demonstrated a propensity to tailor his evidence in a manner that achieved his own purpose.
These proceedings began with a show cause application filed on 26 June 2008. The applicant continues to rely on that application. The grounds are reproduced in paragraph 10 of the Minister's submissions which I adopt for the purposes of this judgment:
1. Jurisdictional error has been made. RRT took the cases which are against me. They did not take the successful case to support me.
2.Procedural fairness has been denied, RRT did not take important to my evidence.
3.RRT failed to evaluate the risk of persecution if I return to China.
The applicant was given the opportunity to file and serve an amended application giving particulars of his claims and further evidence but he has not taken up that opportunity. I received as evidence paragraph 1 of the applicant's affidavit filed on 26 June 2008. I received paragraph 2 as a submission. I received as evidence the book of relevant documents filed on 25 July 2008.
In his oral submissions, the applicant stressed that his protection visa claims and the documents he used to support them were genuine. However, as I pointed out to him, those assertions go to the merits of the Tribunal decision rather than to its validity. There is in my view no substance to any of the grounds of review asserted in the application.
First, the grounds are not particularised. Ground 3 is patently incorrect by reference to the Tribunal's decision. The Tribunal considered the applicant's factual claims and rejected them. Because the applicant's claims were not believed, the Tribunal concluded that the applicant would not be at risk of harm for the reasons he asserted if he returned to China. The conclusion reached by the Tribunal was open to it on the material before it. The Tribunal did not overlook any element or integer of the applicant's claims.
Neither was there any breach of procedural fairness by the Tribunal. The Minister relies upon s.422B of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal met or exceeded its obligations pursuant to the code of procedure in Division 4 of Part 7 of the Migration Act. The applicant was invited to attend a hearing before the Tribunal. He did attend and gave evidence. According to the record of what occurred at that hearing the applicant was questioned at some length about his claims. The Tribunal's concerns about the genuineness of his documents were raised during the course of the hearing. The Tribunal put to the applicant other doubts it had about his claims.
In addition, the Tribunal wrote to the applicant inviting him to comment on adverse information by letter dated 4 April 2008 (RD 107-110). To the extent that the Tribunal was concerned about inconsistencies between the applicant's written and oral claims and country information and information the applicant provided in documentary form to the Tribunal for the purposes of the review, the Tribunal arguably exceeded its obligations pursuant to s.424A of the Migration Act. Nevertheless, the Tribunal's approach was prudent and lawful. The Tribunal took into account the applicant's response to that invitation reproduced at RD 111-114.
Ground 1 of the application is suggestive of an allegation of bias. There is no evidence to support such an assertion. I accept the Minister's submission that it was for the Tribunal to attach appropriate weight to the applicant's evidence.
I find that the applicant has failed to demonstrate any arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $2,500. That is in accordance with the Court scale. The applicant did not wish to be heard on costs. 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 eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 2 September 2008