SZOWR v Minister for Immigration

[2011] FMCA 180

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOWR v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 180

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

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A, 425, 430

Minister for Immigration v SZLSP [2010] FCAFC 108
SZGIY v Minister for Immigration [2008] FCAFC 68

Applicant: SZOWR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2777 of 2010

Judgment of: Driver FM

Hearing date: 18 March 2011

Delivered at: Sydney

Delivered on: 18 March 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Pinder
DLA Phillips Fox

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 $2,935 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 2777 of 2010

SZOWR

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 made on 22 November 2010.  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 the claims of religious persecution based upon her asserted Christian faith.

2. The applicant arrived in Australia on 11 September 2009 and applied to the Minister’s Department for a protection visa on 17 November 2009.  The Minister’s delegate refused that application on 25 March 2010 and notified the applicant of the decision by letter dated the same day.

3. The applicant applied to the Tribunal for review of that decision on 27 April 2010.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing which was conducted on 22 June 2010.  The applicant was assisted by a Mandarin interpreter.  The applicant was questioned about a number of implausibilities and discrepancies in her claims.  The delegate had not accepted that the applicant was a practising Christian in China or in Australia and those claims were further explored before the Tribunal at the hearing.  The Tribunal also discussed with the applicant the documents produced in support of her earlier student guardian visa on which she came to Australia.

4. After the hearing on 22 July 2010, the Tribunal wrote to the applicant purportedly pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) to put to the applicant apparent discrepancies between information provided in support of the guardian visa and the information provided in support of the protection visa application. The applicant responded by letter dated 12 August 2010 in which she blamed her migration agent who assisted her with the student guardian visa application for those discrepancies. The applicant also claimed to be nervous at the Tribunal hearing. The Tribunal found that the applicant was not a credible witness. It found her evidence to be inconsistent in a number of respects and often vague and lacking in detail. The Tribunal did not accept the applicant’s explanation for the inconsistency in relation to her employment apparent from her student guardian visa application and the protection visa application.

5. The Tribunal also found that the applicant displayed little knowledge of the fundamental aspects of Christianity.  The Tribunal, in contrast to the delegate, accepted that the applicant had attended church in Australia and apparently accepted that she was genuine in that practice.  However, the Tribunal found that the applicant’s religious practice in Australia would not lead her to practise Christianity in a house or unregistered church if she was to return to China. 

6. These proceedings began with a show cause application filed on 22 December 2010.  There are three grounds to that application:

   1. The fact that the Tribunal set out that information in some detail is not sufficient for the Tribunal meet its obligations.

   2. The Tribunal failed to provide the applicant a proper opportunity to respond to some information.

   3. The Tribunal fell into jurisdictional error in making its decision.

7. In view of the extreme generality of those claims, I gave the applicant the opportunity to amend the application including particulars and listed the matter for a show cause hearing today.

8. No amended application or particulars have been provided.  The applicant expressed difficulty in making oral submissions, given that she is not assisted by a lawyer.  I note that the applicant has had the benefit of legal advice from Mr V Hooton on 15 February 2011.

9. I received as evidence the court book filed on 27 January 2011.  I received as a submission the applicant’s affidavit filed with her application on 22 December 2010. 

10. The first ground in the application is that the Tribunal did not meet its obligations in setting out information in some detail, presumably in its decision. To the extent that this is an allegation of a breach of s.430 of the Migration Act, it has no substance. It is clear from the Tribunal’s decision that the Tribunal engaged with the issues arising in the applicant’s review application and that the Tribunal provided the reasons it considered relevant to deal with that review. In any event, a breach of s.430 would not of itself constitute the jurisdictional error[1].  It is otherwise difficult to comprehend the first ground. 

    [1] Minister for Immigration v SZLSP [2010] FCAFC 108 at [54].

11. The second ground is that the Tribunal failed to provide the applicant with a proper opportunity to respond to some information. The nature of that information is not identified. The applicant was not able to throw any light on the assertion in her oral submissions. I am satisfied from a perusal of the Tribunal reasons that the Tribunal afforded at the hearing it conducted an adequate opportunity for the applicant to understand the essential and significant issues upon which the review would turn. It is apparent that the hearing opportunity was a fair one. The Tribunal met its obligations under s.425 of the Migration Act.

12. The Tribunal purported to go through a process of disclosure under s.424A of the Migration Act in relation to information derived from the applicant’s student guardian visa application. That letter is reproduced on pages 76 and 77 of the court book. It was arguable that no such obligation arose and that the information disclosed on its face was not adverse to the applicant’s protection visa claims. The significance of the information was the discrepancy between it and the information in relation to the applicant’s employment contained in her protection visa application. To the extent that an obligation of disclosure arose pursuant to s.424A, I am satisfied that the Tribunal met that obligation. In any event, the Tribunal does not commit a jurisdictional error by acting rationally and fairly out of an abundance of caution to make disclosure purportedly pursuant to s.424A (see SZGIY v Minister for Immigration [2008] FCAFC 68 at [30]). There is no substance to the second ground of review.

13. The third ground of review is a bald assertion of jurisdictional error. That is repeated in the applicant’s affidavit using slightly different terminology. No arguable case of jurisdictional error is apparent to me from my reading of the material. I note in that regard that it must be inferred at [63] of the Tribunal’s reasons (court book, page 103) that the Tribunal was satisfied that the applicant engaged in religious practice in Australia for some reason other than to enhance her protection visa claims. In that regard, I am satisfied that the Tribunal adverted to the relevant issue in s.91R(3) of the Migration Act.

14. I conclude that the applicant has failed to advance an arguable case of error by the Tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.1(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

15. Costs should follow the event in this case. The Minister seeks an order for costs in accordance with the Court scale. The applicant expressed her dissatisfaction with the Tribunal decision but did not otherwise address the issue of 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 $2,935 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 fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  22 March 2011