SZRQK v Minister for Immigration
[2012] FMCA 1038
•31 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRQK & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1038 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – application dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001 (Cth). |
| Migration Act 1958 (Cth), ss.424A, 425, 425A, 426, 426A, 441A, 441C, 476 Federal Magistrates Court Rules2001 (Cth), r.13.10 Migration Regulations 1994 (Cth), reg.4.35D |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 |
| First Applicant: | SZRQK |
| Second Applicant: | SZRQJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1543 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 31 October 2012 |
| Date of Last Submission: | 31 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2012 |
REPRESENTATION
| The Applicants: | In person |
| Appearing for the Respondents: | Mr R O’Shannessy |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 16 July 2012 is dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicants pay the first respondent’s costs set in the amount of $3,239.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1543 of 2012
| SZRQK |
First Applicant
| SZRQJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore: Revised from Transcript)
I have before me an application made on 16 July 2012, pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), seeking review of the decision made by the Refugee Review Tribunal (“the Tribunal”) on 13 June 2012, which affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse protection visas to the applicants.
When the matter came on today the Minister’s representative made an application that the Court dismiss the application pursuant to r.13.10(a) of the Federal Magistrates Court Rules2001 (Cth) on the basis that there was nothing in the application to show that there was any reasonable prospect of the applicants successfully prosecuting their proceeding, or their claims, before the Court.
Background
The applicants before the Court are mother and son who are citizens of the People’s Republic of China (“China”). They arrived in Australia on 2 April 2008. It appears that the second named applicant arrived as a student and his mother (“the applicant”) had a student guardian visa.
Three years later, on 30 June 2011, the applicant applied for a protection visa (Court Book – “CB” – CB 1 – CB 24). The second named applicant also applied for a protection visa but on the basis of being a member of his mother’s family unit (CB 25 – CB 30).
Claims to Protection
The claims to protection put forward by the applicant were set out in a statement attached to her protection visa application. The applicant essentially claimed that she feared persecutory harm in China because of her family’s and her own involvement in what she initially said were Catholic Church activities.
The applicant claimed that she came from a practising Christian family (CB 35.3). She claimed that her family were regularly harassed and questioned by police for holding illegal church gatherings (CB 36.2). The applicant related in her statement a number of incidents of this harassment, including in 1990 when she claimed that a police raid led to her detention and the subsequent miscarriage of a pregnancy (CB 37.6). The applicant also claimed in her statement that her husband and daughter, who remain in China, were being harassed by the police and cannot return to their normal family residence (CB 38.5).
The Delegate
The applicant attended an interview before the delegate in July 2011. Ultimately, the delegate found that the applicant was not a reliable witness and had fabricated much of her evidence to fear harm in China.
On this basis the delegate concluded that the applicant was not of interest to any of the Chinese authorities for any Refugees Convention reason (CB 60 – CB 77).
The Tribunal
On 15 November 2011, the applicants applied to the Tribunal for review of that decision (CB 78 – CB 81). The Tribunal invited both applicants to a hearing, but only the applicant attended and gave evidence on the first occasion (CB 99 – CB 101). On 10 April 2012, the Tribunal again wrote to both applicants inviting them to yet another hearing (CB 106 – CB 112). On that second occasion both applicants attended and gave evidence. It appears also that the Tribunal also took evidence from the applicant’s husband in China and from a male friend in Australia (CB 113 – CB 117).
After that occasion the Tribunal wrote to both applicants inviting them to comment on, or respond to, certain information that the Tribunal said it considered would be the reason, or a part of the reason, for affirming the delegate’s decision. The applicants sent a letter in response which was received by the Tribunal on 25 May 2012 (CB 124 – CB 130).
It is quite clear that the Tribunal, as expressed in its analysis in its decision record, had concerns about the applicant’s credibility. Specifically, for example, it noted contradictory evidence about the applicant’s knowledge of her son’s employment and her own immigration status ([88] at CB 150 – CB 151). Further, the Tribunal noted that the applicant was unable to give evidence about the claimed church gatherings that she said she attended as a child. The Tribunal had further concerns about the applicant’s evidence including that she did not have time to go to church, that she did not read the Bible much, was not currently practising any form of Christianity due to work commitments, and that she had never been baptised ([88] at CB 150 – CB 151).
The Tribunal did accept that the applicant had an interest in Christianity. However, it was not willing to accept that she had practised Christianity in China. These findings, coupled with the Tribunal’s finding that the applicant was not a witness of truth, ultimately led it to find that the applicant had not been raised in a Christian household, had not practised Christianity in China and therefore, if she were to return to China, there was not a real chance that she would suffer persecution for reason of her religion ([89] at CB 151 and [92] at CB 152). The Tribunal also noted any possible change in the applicant’s economic circumstances and considered whether the applicant was a person to whom Australia owed any obligation under the concept of complimentary protection, which it found Australia did not ([96] at CB 152).
Application to the Court
The grounds of the application to the Court are in the following terms.
“1. The DIAC Rejected my application of a Protection Visa.
2. The RRT decided to affirm the DIACs decision not to grant a Protection Visa.
3. I seek the opportunity of the justice fair to let me make a statement of my christian experience.”
[Errors in the original.]
Before the Court
The applicant first appeared before the Court on 8 August 2012. She was assisted at that time by an interpreter in the Mandarin language. The second named applicant did not appear at that time, however the applicant told the Court that the second named applicant was aware of the proceedings and was willing to press his application to the Court.
At that time I explained to the applicant, or sought to explain, the process of judicial review and the different role that the Court played to that of the Tribunal. I emphasised that the grounds as pleaded did not reveal jurisdictional error on the part of the Tribunal. I also sought to emphasise that the Court did not have the power to determine if the applicants were refugees or not.
I consequently, therefore, referred the applicants to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. I urged the applicant to attend to the lawyer who was to be assigned to her and to her son. In this regard, I note that on the Court’s file there is a Certificate issued by Mr Cameron Jackson of counsel indicating that he met with the applicants and gave them written advice.
At the first Court date I also made orders giving the applicants the opportunity to file and serve, if they wished, any amended application and any evidence in support. I explained to the applicant that if all that she and her son could ultimately assert before the Court was that the Tribunal was wrong in finding that she was not a Christian, then it was unlikely that the case could proceed further before the Court. It is the case that the applicants, despite the opportunity of obtaining legal advice, have not availed themselves of the opportunity of providing any amended application, or evidence, to the Court.
When the matter was called today both applicants appeared in person. They were assisted by an interpreter in the Mandarin language. Mr R O’Shannessy appeared for the first respondent. The issue for the Court today is whether the application made to the Court has any reasonable prospect of successful prosecution.
It is quite clear that neither the applicant, nor the second named applicant, despite opportunity in obtaining legal advice, were willing to accept, or could not understand, the difference in the role between the Tribunal and the Court in relation to the question of the resolution of whether or not they are refugees.
Ground One
In essence, the applicants’ complaint to the Court was simply that the Tribunal decision was “not fair”. In ground one of the application the complaint is that “the DIAC” rejected her application. No particulars are provided to this ground. For the sake of clarity I understood “the DIAC” to be a reference to the Minister’s department and, in particular, the delegate who considered the application for protection visas.
As the ground stands it is a statement of fact, not a ground asserting jurisdictional, or even legal, error on the part of the Tribunal. But even if it could be said that, by this ground, the applicants were seeking that the Court review the delegate’s decision it is the case that the Court has no jurisdiction to do so (s.476(2)(a) of the Act).
Ground Two
In ground two the applicants stated that the Tribunal affirmed the delegate’s decision not to grant them protection visas. As with ground one this, again, is a statement of fact not an assertion of legal error. Even at its highest, and it was taken to be some sort of complaint against the Tribunal’s findings and conclusions, it seeks nothing more than impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Ground Three
In ground three the applicant appears to complain that she was not given the opportunity to discuss her Christian beliefs with the Tribunal. No particulars have been provided in support of this ground. For the purposes of the current consideration, at best, I can take that the applicant complains that the Tribunal failed to afford her procedural fairness.
As I have already said, the Tribunal did write to both applicants inviting them to a hearing on two occasions pursuant to s.425 of the Act. It is clear from the evidence before the Court that the invitations complied with the relevant statutory and regulatory requirements (CB 92 – CB 93 and CB 106 – CB 107, and see ss.425, 425A, 426, 426A, 441A, 441C and reg.4.35D of the Migration Regulations 1994 (Cth)).
The applicants have not put any evidence before the Court to challenge the Tribunal’s account of what occurred at both occasions of the hearing. It is clear from the only relevant evidence before the Court, the Tribunal’s own account in its decision record, that the applicant was given the opportunity to discuss her claimed religious beliefs.
Nor can I otherwise see that any issue dispositive, or determinative, of the review was not raised at the hearing (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152). It is the case that, ultimately, the Tribunal disregarded the applicant’s claims as it found that the applicant was not a credible witness. It is well established that findings as to credibility, like findings of fact generally, are for the decision-maker to make in the proper exercise of the jurisdiction that has been given to them (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J).
The applicant’s complaint that the Tribunal was “not fair” really must be seen as a complaint that she disagrees with the Tribunal’s conclusion. It is the case that the Tribunal is under an obligation to ensure that the applicant is given a “fair process” in the conduct of the review, not necessarily what she would consider to be a “fair outcome” (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1). I also note that, in terms of procedural fairness, the Tribunal wrote to the applicants pursuant to s.424A of the Act, and gave them the opportunity to comment on certain information.
In relation to the applicant’s complaint about an alleged failure to be given an opportunity to explain her Christianity, I note that one of the specific matters raised by the Tribunal in its “s.424A letter” was the question of “lack of knowledge about and practice of Christianity”.
Before the Court today, the applicant expressed concern about her son’s non-attendance at the first Court date. In particular, whether she had made a “mistake” in not bringing her son at that time. Further, whether the Court was “upset” because the son had not attended at that time.
I sought to explain to the applicants today that that was not a matter of any “mistake” on her part, nor that the Court was “upset”. Rather, that the Court was concerned that an applicant who was an adult had knowledge of the proceedings that had been initiated in his name and that he too be given an opportunity to participate in the processes before the Court. That included the opportunity of attending at the conference with the lawyer assigned to provide advice. I accept what the second named applicant said to the Court today, that this was as much his application, that he pressed this application as his own, and that he also attended at the opportunity to obtain legal advice.
Conclusion
For the reasons that I have already given, the grounds of the application to the Court have no reasonable prospects of success. Nothing has been added, or said, to what was presented by the applicant at the first Court date. Despite opportunity, the applicants have put nothing before the Court today nor, indeed, said anything to the Court that would advance the state of their grounds beyond that point.
It is appropriate, therefore, having been put on notice, given opportunity, and in light of the demonstrated inability of the applicants to enhance the grounds before the Court, that I agree to the Minister’s application that the matter be disposed summarily. Accordingly, I will make the order as Mr O’Shannessy has sought.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 13 November 2012
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