SZTMN v Minister for Immigration

[2013] FCCA 2083

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2083

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

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.91R, 425

Applicant: SZTMN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2737 of 2013

Judgment of: Judge Driver

Hearing date: 5 December 2013

Delivered at: Sydney

Delivered on: 5 December 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Wong

DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.11(a) of the Federal Circuit Court Rules 2001 (Cth), there be an immediate show cause hearing.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2737 of 2013

SZTMN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 (Tribunal).  The decision was made on 10 October 2013.  The decision as originally issued by the Tribunal incorrectly dated the decision at 10 November 2013.  A corrigendum limited to the correction of the date of the decision was issued on 15 October 2013. 

2. The applicant is from China, and had made claims of persecution based upon his dispute with local officials over the consequences of the construction of a factory next to his home causing flooding, and his Christian faith. 

3. The applicant arrived in Australia on a visitor visa on 23 June 2012. He applied for the protection visa on 6 July 2012. That application was refused by the Minister’s delegate on 15 October 2012. The applicant sought review before the Tribunal, which was acknowledged by letter dated 22 November 2012. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing, pursuant to s.425 of the Migration Act 1958 (Cth) (Migration Act). The applicant requested a postponement, which was granted. He also engaged the assistance of a migration agent. The applicant accepted the invitation to attend the postponed hearing and did attend, although his agent elected not to attend. The hearing lasted approximately one and a half hours. The Tribunal questioned the applicant about his claims. It is apparent that the Tribunal had some doubt as to whether there was a Convention nexus relating to his problems with his property in China, but the applicant’s account was internally consistent.

4. The Tribunal accepted that the applicant had had difficulties in China with local officials because of the construction of a factory next to his land which caused flooding.  He had been unable to resolve those problems with the local officials.  The Tribunal did not accept, however, that the applicant had been persecuted in the past because of those problems. 

5. It is apparent that the Tribunal had doubts about the applicant’s claims based on his religion.  Those doubts included the limited period he had been attending church in Australia and the fact that he had been attending church which conducted services in the Korean language, which he did not understand. 

6. The Tribunal did not accept that the applicant had been a practising Christian in China. The Tribunal accepted that the applicant had had some contact with a Korean-based church in Australia, and that he may have attended some services and a study group there. However, given that that involvement was very recent in terms of proximity to his protection claims, and given that he had not been baptised and apparently had no plans to be baptised, and given the Tribunal’s doubts about the plausibility of the applicant’s claim that he followed services held in the Korean language by translation from Korean into English and from English into Mandarin with the assistance of a friend, the Tribunal was not satisfied that the applicant engaged in this conduct for any reason other than to strengthen his protection claims. The Tribunal disregarded that conduct pursuant to s.91R(3) of the Migration Act.

7. The Tribunal also considered whether the applicant qualified for complementary protection.  The Tribunal concluded that the applicant did not qualify for protection, either as a refugee or on the basis of complementary protection. 

8. These proceedings commenced with a show cause application filed on 6 November 2013.  The application is supported by a short affidavit by the applicant which identifies himself and attaches the Tribunal decision.  I also have before me the court book filed on 4 December 2013. 

9. The Minister filed a response to the application on 19 November 2013, which noted that the application filed on 6 November 2013 contained grounds repeating the applicant’s claims for protection.  I was concerned on reading those grounds that the applicant was doing no more than reiterating his claims for protection.  The Minister in his response was prepared to concede that the applicant was asserting that his claims were not considered, although that was not apparent to me from my reading of the grounds.  In any event, it was apparent from the Tribunal’s decision that the applicant’s claims had been considered. 

10. I put to the applicant that it seemed to me that his application did not properly engage the jurisdiction of the Court, because he did not assert any jurisdictional error.  I asked him what was wrong with the Tribunal decision or the Tribunal’s process.  He told me that he was dissatisfied with the Tribunal’s decision because he considers he should have been granted the visa he sought.  However, he was unable to point to any legal issue that might support a claim of jurisdictional error. 

11. Up until 30 November 2013, applicants in the circumstances of this applicant were entitled to receive the assistance of advice from a panel advisor paid for by the Minister’s Department.  That assistance is no longer available.  In the circumstances, I was concerned that it would not be in the interests of the administration of justice to conduct a show cause hearing after a lengthy delay if the applicant was not to be in a better position to articulate a coherent assertion of error by the Tribunal.  Having regard to the fact that the court book was available[1], I directed an immediate show cause hearing.  I went through the court book page by page with the applicant and the Minister’s solicitor.  I accept what he told me in response to my questions. 

    [1] and that ample time was available

12. The circumstances are as follows.  The applicant prepared his protection visa application with the assistance of an undeclared agent.  That person is apparently not a registered migration agent.  The application was completed by that person and the applicant signed it.  The applicant was dissatisfied with the assistance he received from that person.  Following the delegate’s decision, he applied for review by the Tribunal. 

13. While it is obvious that the protection visa application was professionally prepared, the review application was completed by hand.  I put to the applicant that it appeared that he had completed the review application himself without assistance.  After some hesitation, he accepted that the signature[2] on the review application was probably his.  The applicant told me that he had received assistance in completing that form and that is quite possible.

    [2] Court Book, page 60

14. What is apparent is that, around the time the applicant was invited to attend the hearing by the Tribunal, he decided that he needed more assistance.  He engaged the services of a registered migration agent, Mr Lanshan Gao.  Mr Gao sought a deferral of the hearing proposed by the Tribunal and that request was agreed to.  Mr Gao took the applicant to the Tribunal’s premises for the hearing, but then departed.  Mr Gao completed the Response to Hearing Invitation and indicated that he would not be attending.  The applicant paid Mr Gao $1,000 for his services. 

15. The applicant told me that he was not aware that Mr Gao could have attended the Tribunal hearing with him.  He and Mr Gao had not discussed that and he did not raise any issue with the Tribunal.  He was, after the event, dissatisfied with Mr Gao’s services and engaged a different person to assist him with his present application to the Court.  That person, who is unnamed, apparently completed the judicial review application and brought the applicant to court today.  The applicant told me that she was waiting outside court. 

16. I asked the applicant about the significance of the document appearing at page 99 of the court book.  That document contains an address and telephone number and words in the Chinese language.  The applicant told me that during the hearing, he had been asked to identify the church he attended and the address is the address of the church.  He wrote in Chinese characters the name of the person who assisted him during services to understand them. 

17. I asked the applicant what he expected the Tribunal would do with that information.  He initially told me that he simply provided it to the Tribunal to verify his claims concerning his church attendance.  Later, however, he told me that he had expected that the Tribunal would contact his friend, William, to verify what happened at the church services.  However, he had not specifically asked for that to occur. 

18. The Tribunal’s decision records[3] the relevant discussion that occurred at the hearing.  I accept that the document at page 99 of the court book was prepared during the course of that discussion.  I have considered whether there is an arguable case of jurisdictional error on the basis that the Tribunal should have contacted William to verify the applicant’s evidence. 

    [3] Court Book, page 109, in the first dot point

19. The Tribunal disregarded the applicant’s church attendance in Australia, in part, because of its doubts about the plausibility of his claim to be able to follow services held in Korean after consecutive interpretation into English and then into Mandarin.  However, there were a number of other concerns the Tribunal had which led to its conclusion that it should disregard that conduct.  Those included the applicant’s limited understanding of Christianity, his recent church attendance and the facts that he was not baptised and had no apparent plans to be baptised. 

20. I have concluded that it is not arguable that the Tribunal fell into jurisdictional error by not contacting the applicant’s friend, William, if, indeed, he was not contacted. 

21. I have also considered whether the correction of the date of the Tribunal’s decision has any jurisdictional significance.  I have concluded that it does not.  It is, in my view, open to the Tribunal, following the delivery of its decision, to correct the date of the decision.  No injustice was done as the applicant remained able to apply for judicial review within time.  Different considerations would arise if the Tribunal sought to amend the text of its decision after the decision had been delivered. 

22. There is no arguable case of jurisdictional error on the face of the application before the Court.  I have considered, from my own examination of the material, whether any arguable case might be advanced.  I have concluded that no arguable case of jurisdictional error could be advanced. 

23. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

24. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The Minister sought costs fixed in the sum of $1,900.  Scale costs in this instance would be $1,331.  The applicant did not wish to be heard on costs.  The Court has been assisted in this matter by the timely production of the court book which is not commonly available at the first court date.

25. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 10 December 2013