SZRSE v MINISTER FOR IMMIGRATION & ANOR - [2012] FMCA 1007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRSE v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1007

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – 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

Applicant:

SZRSE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1732 of 2012

Judgment of:

Driver FM

Hearing date:

1 November 2012

Delivered at:

Sydney

Delivered on:

1 November 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms M Stone
DLA Piper

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 $3,239 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 1732 of 2012

SZRSE

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 is dated on its face 12 July 2012, and was certified on behalf of the Tribunal’s district registrar the following day. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China (Fujian Province) and had made claims of persecution based upon his asserted Catholic faith.
The applicant arrived in Australia on a student visa in 2007. He was granted another student visa later that year. He was issued with non-compliance notices on 17 August 2007, 7 February 2008, 8 April 2008 and 11 June 2008, as he had not commenced a course of study. His student visa expired on 15 March 2009 and he became an unlawful non-citizen after that date. The applicant was located by compliance officers from the Minister’s Department on 3 April 2012, when he was detained. He was interviewed by officers of the Department at the time of his detention. He said that he wanted to apply for a further student visa. He nevertheless applied to the Minister’s Department for a protection visa on 12 April 2012. That application was refused by the Minister’s delegate on 30 May 2012.
The applicant then applied for review of that decision by the Tribunal. On 18 June 2012, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the Migration Act) setting out adverse information concerning the applicant’s immigration history. While the Tribunal received correspondence from the applicant’s representative, it does not appear to have directly addressed the issues raised in that invitation.
The applicant was subsequently invited to attend a Tribunal hearing, and he did attend with a representative. He was assisted by an interpreter in the Mandarin language. At the hearing on 2 July 2012, the applicant was questioned at considerable length about his claims. It is apparent from the Tribunal’s record of that hearing that the Tribunal entertained substantial doubts about the applicant’s claims. At the end of the hearing, the applicant’s representative provided a written submission in which she detailed the applicant’s claims. She also sought and was granted time to provide a post-hearing submission. However, the Tribunal records at [56] of its reasons[1] that no further submission was received. The Tribunal found at [68] of its reasons[2] that the applicant was not a person of credibility. The Tribunal details numerous credibility concerns it had about the applicant’s claims. At [70] of its reasons[3], the Tribunal also expressed concern about the applicant’s delay in seeking protection. At [75][4], the Tribunal concluded that these concerns caused the Tribunal to reject the applicant’s claims of persecution based upon his asserted involvement with the unregistered Catholic Church.
[1] Court Book (CB) 158
[2] CB 161-165
[3] CB 165
[4] CB 166-167
The Tribunal found all of the applicant’s material claims to have been untruthful. The Tribunal accepted that the applicant had been attending church in Australia. However, the Tribunal disregarded that conduct pursuant to s.91R(3) of the Migration Act.
These proceedings began with a show cause application filed on 9 August 2012. The applicant continues to rely upon that application. There are three grounds in that application:
1. I am a person to whom Australia has protection obligations.
2.The R.R.T member was racially prejudiced against me.
3. The solicitor recommended to me by R.R.T spoke in favour of R.R.T instead of protecting me.
I have before me as evidence the court book filed on 28 August 2012.
I received as a submission the applicant’s affidavit filed with his application on 9 August 2012. The Minister contends that the application fails to raise an arguable case of jurisdictional error on the part of the Tribunal.
The first ground in the application simply repeats that the applicant claims protection. The Court cannot adjudicate upon that claim.
The second ground is an allegation of bias. There is no evidence before me to support that allegation. The applicant asserts that during the hearing, the presiding member suggested that the applicant was reciting learned events. That may well be so, and would be consistent with the Tribunal’s findings. The applicant appears to be concerned that he was vigorously tested about his claims. The Tribunal is, however, entitled to test an applicant’s claims with vigour. That does not demonstrate bias. The applicant asserts that the presiding member suggested during the hearing that the applicant may be afraid to return to China because of fear of his parents, who had supported him financially in his (intended) studies. I do not have a transcript before me of what occurred at the Tribunal hearing. I do not rule out the possibility that the presiding member may have said something along those lines. If it was said, it was an inference available from the applicant’s immigration history. However, no such inference figured in the Tribunal’s ultimate decision. There is no arguable case of bias on the part of the Tribunal.
The third ground is a complaint against the migration agent who had assisted the applicant. It appears that the agent had been allocated to the applicant on the basis that assistance would be provided at no cost to him. The court book discloses that the applicant’s agent advocated vigorously and competently on his behalf. There is no suggestion of fraud by the agent. An associate of the agent attended the hearing before the Tribunal. She appears to have made useful submissions on the applicant’s behalf.
The applicant asserts that his representative also stated at the hearing that he may be afraid to return to China because of fear of his parents. In the absence of a transcript, I am unable to verify that assertion. Even if such a statement was said, it would not support any claim of jurisdictional error on the part of the Tribunal. There is no explanation why no post-hearing submission was made by or on behalf of the applicant.
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. From my own reading of the court book, no such assertion is available.
I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules).
As a consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. The applicant asserts impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
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 $3,239 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 2 November 2012