SZMMT v Minister for Immigration
[2008] FMCA 1510
•5 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMMT v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1510 |
| 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; 474; pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZMMT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1761 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 5 November 2008 |
| Date of last submission: | 5 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2008 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter: |
| Solicitors for the Respondent: | Ms D. Watson, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1761 of 2008
| SZMMT |
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 10 June 2008 and handed down that same day.
The applicant claims to be a citizen of the People’s Republic of China and of Han ethnicity and previously a resident of the Fuqing Gulf (“the Applicant”).
The Applicant arrived in Australia on 27 August 2007 having departed legally from Hong Kong on a passport issued in her own name and a Subclass 676 visitor visa issued on 24 July 2007.
On 10 October 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 16 November 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 18 December 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 10 June 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 9 July 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
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 Applicant’s application for a protection visa
The Applicant provided a statement in support of her protection visa application in which she stated that she feared persecution by the Chinese government as a result of her protest against the reclaiming of land by force by the government.
The Delegate’s decision
The Delegate wrote to the Applicant on 29 October 2007 inviting her to attend an interview on 15 November 2007 and enclosing details of interpreting services and the Migration Agents Registration Authority. The Applicant did not confirm her attendance for this interview as requested by the letter, nor did she attend at the scheduled time and place.
On 16 November 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 Tribunal’s review and decision
On 18 December 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 8 January 2008, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 21 February 2008 to give oral evidence and present arguments. This letter was marked returned to sender and returned to the Tribunal on 15 February 2008.
On 8 February 2008, the Tribunal wrote a further letter to the Applicant again rescheduling the hearing to 1 April 2008.
On 20 March 2008, the Tribunal sent a letter to the Applicant postponing the re-scheduled hearing date of 1 April 2008. On 27 March 2008, the Tribunal wrote to the Applicant informing her that the new hearing date was 20 May 2008. This letter was marked return to sender and returned to the Tribunal on 1 May 2008. A case note, dated 1 April 2008, disclosed that the Applicant attended for a hearing on that date. The Applicant was then informed that her hearing had been rescheduled to 20 May 2008 and she was provided with a copy of her letter of invitation. At this time, the Applicant also completed a change of address form and provided it to the Tribunal.
On 20 May 2008, the Applicant attended the hearing and gave evidence. The Tribunal noted in its decision record that the Applicant said her statement of her claims had been written by a relative in China, sent to Australia and its translation organised by her son who was in Australia on a student visa.
The Tribunal noted in its decision record that the Applicant claimed: the fishing rights in her village, had been sold by the Chinese government and no compensation had been paid; protests and demonstrations resulted in 10 people being arrested and subsequently jailed for eight to ten years; she had been told “she also was “on the list” to be arrested”, as a result of which she moved provinces; after her move, her son remained in her hometown and she secretly visited him; and, that she needed to work to pay off her debts.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and the Tribunal’s case files.
The Tribunal found the Applicant was not a witness of truth.
The evidence of the Applicant to the Tribunal and the decision of the Tribunal is accurately summarised by the solicitor, Ms Watson, for the First Respondent in her written submissions as follows:
“7. On 20 May 2008, the applicant attended the Tribunal hearing [RD pp.69-71]. At the Tribunal hearing the applicant said that her son came to Australia in December 2006 on a student visa. She claimed that in 2003 the local government had sold the region's fishing rights to "rich people". The local people, including herself, sought compensation but it was refused. This lead to protest demonstrations and 10 people were arrested. She claimed that someone told her she was "on the list" to be arrested. She claimed she moved to another province where she remained for several years until she travelled to Australia in 2007.
…
10. The Tribunal did not find the applicant to be a credible witness, noting her claims were brief and unable to be substantiated at the hearing.
11. The Tribunal found that the applicant seemed more concerned about the relatively more favourable financial prospects for her and her son in Australia compared with China, than about possible persecution for any Convention reason.
12. The Tribunal found that the fact that the applicant was able to travel freely to Australia on her own passport indicated that she was not of particular adverse interest to the Chinese authorities.
13. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason should she return to China in the near or foreseeable future.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. The Applicant has participated in the NSW RRT Legal Advice Scheme.
The ground of the application is expressed to be as follows:
“The Refugee Review Tribunal committed jurisdictional errors of law.”
In an affidavit filed in support of her application, the Applicant again made general assertions about “legal errors” committed by the Tribunal and stated that her protection visa application was “based on claims of land loss by Chinese government authority”.
At the first directions hearing before this Court, the Court explained to the Applicant that the ground of her application did not disclose any error capable of review by this Court. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any evidence, including any transcript of the Tribunal, hearing by 19 September 2008. The Court provided the Applicant with a copy of the costs schedule of this Court and explained to her the consequences that would flow if she was unsuccessful in her proceeding. The Applicant confirmed to the Court that she wished to continue with her application. The Court also directed the Applicant to file and serve written submissions in support of her application 14 days before today’s hearing. However, the Applicant has filed no amended application, further evidence or written submissions in support of her application.
When the court asked the Applicant this morning what her complaint was about the Tribunal’s review and decision, she responded that her work permit had been rejected, she had been allowed to work in the past and she had made her application within 28 days. She was unable to further clarify what she meant by these assertions. Other than repeating these statements, the Applicant made no other submission in support of her application to this Court for judicial review of the Tribunal’s decision.
A fair reading of the Tribunal’s decision makes clear that the Tribunal set out the Applicant’s written claims in full. There was no transcript of the hearing provided to this Court to suggest that the Tribunal’s summary of her oral evidence was not accurate. Accordingly, I accept as accurate the Tribunal’s summary of the oral evidence given to it by the Applicant at the hearing.
A fair reading of the Tribunal’s decision discloses that the Tribunal put to the Applicant concerns it had about her evidence and noted her responses.
The Tribunal found the Applicant’s written claims to be “extremely brief” and found that she was “unable credibly to flesh out and substantiate her claims at the hearing”. The Tribunal noted that the Applicant told it that the idea for her application for a protection visa did not come from her. Rather, her son and other friends suggested that course “primarily in response to their poor financial situation and their desire to remain in Australia”.
The Tribunal did not accept the Applicant’s written and oral claims of past events and alleged persecution. The Tribunal noted that the Applicant was unable to identify to the Tribunal the possibility of persecution in the future for any Convention-related reason.
The Tribunal also had regard to the fact that the Applicant was able to travel freely to Australia on her own passport and found that, in the circumstances, she was not of adverse interest to the Chinese authorities.
The Tribunal’s reasons for affirming the decision under review were based entirely on evidence provided by the Applicant and its consequent lack of satisfaction that the Applicant met the statutory criteria required for being a refugee. The Tribunal’s findings, including its adverse credibility findings, were open to it on the evidence and material before it and for the reasons it gave. Credibility is a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). In its conclusions, the Tribunal applied the correct law to the facts as it found them to be.
Otherwise, the Tribunal complied with the statutory regime in the conduct of its review, including the making of its decision.
Conclusion
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-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 5 November 2008
0
1
2