SZMXT v Minister for Immigration
[2009] FMCA 136
•9 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMXT v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 136 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant the applicant a protection visa – applicant is a citizen of the People’s Republic of China claiming fear of persecution for reasons of his family background and political opinion – privative clause decision – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424, 424A, 425, 425A, 474 |
| Applicant: | SZMXT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2928 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 February 2009 |
| Date of Last Submission: | 9 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Solicitors for the Applicant: | Not legally represented |
| Appearance for the Respondents: | Ms Palmer |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent's costs fixed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2928 of 2008
| SZMXT |
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 China. He has brought an application for review of a decision of the Refugee Review Tribunal that was signed on 10th October 2008 and handed down on 30th October. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant the applicant a Protection (Class XA) visa.
The applicant commenced proceedings in this Court by filing an application and an affidavit it support on 12th November 2008.
He filed an amended application on 5th January 2009. In that application he asks the Court to issue three writs:
i)A writ of certiorari to quash the decision of the Refugee Review Tribunal;
ii)A writ of mandamus requiring the Tribunal to hear and determine his application according to law;
iii)A writ of prohibition against the Minister for Immigration & Citizenship to prevent any action being taken in reliance upon the Tribunal decision.
In his amended application, the applicant has set out two grounds of review:
i)That the Tribunal was wrong to say that he was not a refugee;
ii)That the Tribunal failed to notify him in writing of the reason, or part of the reason, for affirming the decision and therefore failed to comply with the requirements of s 424A of the Migration Act. The Minister opposes those orders and submits that no jurisdictional error has been made out.
The background to this matter is that the applicant arrived in Australia on 12th February 2008. On 25th March 2008 he applied for a Protection (Class XA) visa. In a short statement attached to his application the applicant claimed that his family had suffered persecution from the Chinese government because of his family background.
He complained that he and his wife had wanted to have another child but had come under adverse notice from the Chinese government because of China's one child policy.
He claimed that his wife was ordered to have abortions and he was penalised because of his support for her. He claimed that in 2003 he was heavily fined after a serious argument and he lost his business and had to start all over again. A delegate of the Minister wrote to the applicant and invited him to attend an interview. The delegate noted that the applicant did not accept the invitation to the interview and did not attend the interview. On 23rd June 2008 the Minister's delegate refused the application for a protection visa.
The delegate set out reasons for this decision and said:
As the applicant has chosen not to attend an interview to discuss his claims, his claimed fear of persecution upon return to China cannot be examined. Subsequently, I cannot be satisfied as to the veracity of the applicant's claims. In these circumstances it is not reasonable to be satisfied that the claims that have been made are true claims or that the events occurred for reasons relating to a Convention reason, or that they occurred as claimed. Given the particular circumstances noted above, I am unable to be satisfied that the claims of persecution are credible.[1]
[1] See Court Book pages 43 and 44.
The applicant then applied to the Refugee Review Tribunal for a review of the delegate's decision. That application was received by the Tribunal on 23rd July 2008. The applicant did not nominate any person as a migration agent or an authorised recipient, however, although he gave his residential address as a suburb of Sydney. He gave an address in Elizabeth Street, Surry Hills, as an address for receiving mail.
The Tribunal wrote to the applicant on 1st August 2008 and invited him to attend the hearing to take place on 18th September. The applicant responded to the invitation and indicated that he wished to attend the hearing but would need an interpreter in the Mandarin language.
The applicant attended the hearing and gave evidence with the assistance of the interpreter. He brought with him, and produced to the Tribunal, his Chinese passport. The Tribunal handed down its decision on 30th October 2008. In that decision the Tribunal set out the applicant's claims and evidence. The Tribunal noted that at the hearing the applicant introduced a number of issues that had not been previously mentioned. One of those issues was a claim that the applicant's father had suffered because he came from Taiwan.
The applicant gave evidence that he had married and had a son.
The Tribunal noted that the applicant had adopted his wife's religion but could not change his household registration from Ham to his wife's minority group Hui. The Tribunal noted that minority groups were allowed to have a second child but the applicant's wife was forced to have an abortion and was fined. The Tribunal also noted that a discussion took place about the applicant's travel to Malaysia and Singapore in 2007.
The Tribunal found that the applicant is a citizen of China. However, the Tribunal expressed serious doubts about the applicant's credibility. The Tribunal said:
I do not find the applicant a convincing witness. Even at the maximum, his claims barely cross the threshold to constitute persecution.[2]
[2] See Court Book page 70.
The Tribunal noted that the applicant's history was inconsistent with the claim to have been persecuted and then went on to set out why the Tribunal found the applicant's account not to be credible. The Tribunal was not satisfied that the applicant had been persecuted in the past for reasons of his race or membership of a particular social group, real or imputed political opinion or any other Convention reason.
The Tribunal found that the applicant did not have a well-founded fear of persecution in China for a Convention reason and affirmed the decision not to grant him a Protection (Class XA) visa.
The applicant then commenced proceedings in this Court for judicial review. He claims, first of all, an error by the Tribunal in saying that he was not a refugee and, second, he claims a breach of s. 424A of the Migration Act. The applicant did not file any written outline of submissions but attended Court and made oral submissions to the Court. He told the Court that his wife belonged to the minor ethnic group called Hui and that she was forced to have an abortion.
He claimed that because of his refusal to go along with what the authorities wanted, he was put in a detention centre.
The applicant said that the Tribunal said that if his wife had been persecuted that she should have travelled to Australia with him, but he said that he did not have the funds for that. The applicant also submitted that the Tribunal had not considered his claims. However, Ms Johnson, who appeared for the Minister, pointed out that the Tribunal had considered the factual aspects of the applicant's claims at paragraph 24 on page 69 of the Court Book, and at paragraph 31 that appears on page 70.
The applicant told the Court in reply that in the province that he comes from in China, the one child policy was being enforced very strictly by the authorities and that because of his desire for a second child he was deprived of his business licence and he said that he could not survive. There are two grounds of review in the amended application. The first ground merely states that the Tribunal was wrong to say that the applicant was not a refugee. Ms Johnson, who appeared for the Minister, submitted that this ground was not a proper ground of review and could not be established.
In my view, the ground is not a proper ground of review because it is a challenge to the Tribunal's factual finding. The ground in fact invites the Court to conduct a review of the merits of the applicant's claim for refugee status. It is well established that the Court does not have the jurisdiction to reconsider the merits of the applicant's claim. Merits review is not available on an application to this Court for judicial review of an administrative decision.
The second ground is a complaint of a breach of s. 424A of the Migration Act. The applicant claims that the Tribunal failed to notify him in writing of the reason or a part of the reasons for affirming the decision and that he was not given an opportunity to comment upon the reasons. The solicitor appearing for the Minister submitted that ground two was misconceived because the Tribunal is not obliged to provide advance notice to an applicant of the basis upon which it might affirm the decision under review. She went on to submit that the essential basis for the Tribunal's decision was its finding that the harm claimed by the applicant was insufficient to constitute persecution. That was ultimately a question of fact for the Tribunal and no jurisdictional error is shown.
The second ground of course is a claim that the Tribunal failed to comply with s. 424A of the Migration Act. It is clear that the Tribunal made its decision based on the applicant's own evidence to the Tribunal. The applicant gave his account to the Tribunal, but the Tribunal did not find that credible. It is well established that the question of the credibility or otherwise of a witness is essentially a matter for the Tribunal itself. In my view it was open on the evidence for the Tribunal to find that the applicant was not a convincing witness.
The Tribunal considered and rejected each of the factual grounds upon which the applicant relied. The Tribunal considered the circumstances of the applicant's wife having been obliged to terminate her pregnancy. The Tribunal did not accept that this was the case. The Tribunal found:
However, if the applicant had genuinely wanted to seek protection out of China and had wanted to have more children, I believe that he would have travelled with his family. The facts of this case are more consistent with his wanting to secure work in another country as a means of better supporting his family and with his motivation being migratory and not to escape persecution.
The Tribunal did not accept the essential aspects of the applicant's claims. In my view, on the evidence before it, the Tribunal was entitled to make a finding adverse to the applicant's credibility. The Tribunal did not commit any breach of s. 424A of the Migration Act. Because the Tribunal was not satisfied by the applicant's own account of his claim of persecution, the information upon which the Tribunal relied was not subject to the requirements of ss. 424(1) of the Migration Act. It is subject to the exclusion in ss. 424A(3) of the Act.
It is certainly not the case that the Tribunal is required to give a running commentary to an applicant on whether the applicant's claims are being accepted or not and there is certainly no obligation upon the Tribunal to give the applicant a further opportunity to make written comments if the Tribunal is not satisfied with the veracity of the applicant's evidence. There is no breach of s. 424A of the Migration Act. There is no breach of s. 425 or s. 425A.
The Tribunal invited the applicant to attend a hearing and did so by giving him sufficient warning of the hearing date. The applicant attended the hearing and was able to give evidence with the assistance of an interpreter. It is unfortunate for the applicant that the Tribunal did not accept his evidence as being credible. The delegate had not been satisfied with the sufficiency of the evidence provided by the applicant with his application for a protection visa. It is also the case that the applicant did not attend an interview with the Minister's delegate.
The issue of credibility and the applicant's inability to make out a claim of persecution that comes within one of the headings of subject matter under the Refugees Convention were matters that had been considered by the delegate. The applicant's credibility generally and the question of whether or not the applicant had made out a case that he was persecuted under one or more of the reasons under the Migration Act were clearly the issues that needed to be addressed. The Tribunal was not satisfied that the applicant had made out his case. There is no breach of s. 425 of the Migration Act.
In my view, no jurisdictional error appears in the Tribunal decision.
In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. As it is a privative clause decision, the remedies of certiorari, mandamus and prohibition are not available. It follows that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $3,500.00. The applicant has been unsuccessful in his claim and in my view it is appropriate for an order for costs to be made in favour of the Minister. The amount sought by the Minister is the sum of $3,500.00. That is not a particularly large amount, indeed it is well under the amount prescribed by the scale in the Federal Magistrate Court Rules. In my view, from the history of this matter and the documentation prepared, it is an appropriate amount.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 18 February 2009
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