FEDERAL COURT OF AUSTRALIA

SZJGB v Minister for Immigration & Citizenship [2007] FCA 472 

MIGRATION – protection visa – application for leave to appeal – information given in hearing is information given for the purposes of the application  

Migration Act 1958 (Cth) s 424A

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Federal Magistrates Court Rules r 44.12(2)

Minister for Immigration and Multicultural Affairs v Al Shamry [2001] 110 FCR 27

NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195

SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609

SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214

SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1359

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212

SZJGB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2450 OF 2006

BUCHANAN J

3 APRIL 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

2.                  The application for leave to appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BUCHANAN J:

1                     The sole ground for this application for leave to appeal from the Federal Magistrates Court is that the Refugee Review Tribunal (‘the RRT’) should have provided to the applicant, for his comment, his own visa application.

2                     The applicant arrived in Australian on 20 December 2005.  He is a citizen of the People’s Republic of China.  He applied for a protection (class XA) visa on 30 December 2005.  Attached to the application was a typed statement.  The statement said:

1.      My hometown is located in Shenzhen City, Guangdong Province, the People's Republic of China.

2.      Before I came to Australia on 20 December 2005, I had managed my own business selling and repairing motor bikes spare parts. Later stage of my business, my business also sold smaller motor vehicles parts. Our customers were from all the over places.

3.      In around June 2001 I got to know a man by the name of [X]. Mr [X] was a truck driver working for a construction and building materials company based in Hong Kong. The company which Mr [X] worked for was one of the main suppliers of construction goods in my ity. Mr [X] also transported building materials from Hong Kong to different construction sites in China.

4.      From my childhood I heard about Christian from my parents. When I grew up I further understood that the religious practice in the official churches had been strictly restricted, controlled and monitored by the government. And furthermore the religious materials including the Bible used in these official churches had been strictly reprocessed by the government.

5.      My desire and interests to the Christian reached to its peak after I found out that Mr [X] was a Christian. Mr [X] told me that his mission was to transport the religious materials from Hong Kong to China, using an identity of a truck driver. After I told him about my intention to take partin and help him with his mission, he asked me to organize a special network with which we could distribute Bibles and the religious materials more effectively into different underground churches.

6.        As previously mentioned there were no real religious publications in China since they were strictly controlled. In order to let more people have opportunities to access those materials, I accepted Mr [X’s] request and organized a special network from May 2003.

7.      First I started contacting some of my friends for help, including Mr [Y] and his brother Mr [Z] who had a fish store in the same city. Very soon after that, these two brothers introduced their distant relative, Mr [A] who was a college teacher. We later enlisted a few more people in our network.

8.      From May 2003 to December 2004 my network successfully transported and distributed thousands of copies of Bibles and religious promotion materials to the underground churches in south China areas and regions.

9       Our operation was so successful until 10 March 2005 when I received a phone call from Mr [Y], telling me that his distant relative Mr [A] was caught by the PSB in Shenzhen as he gathered some members to study the Bible at his dormitory, which was searched by the police and some of Bibles and religious materials were discovered. I immediately asked Mr [Y] to inform the rest members of our network as soon as possible to stop all action until further notice.

10.    The situation was even getting serious when we learned that PSB had acted fully to find our network. It was our decision to disperse and hide for our own safety.

11.    I went to hide in a distant relative in Guangzhou for some time. I knew I was ina dangerous situation if I did not go overseas. But I don't have any friends overseas for me to go. Through a close friend in PSB I had my Chinese passport and a visa to Australia,

12.    As a person who organized transportation and distribution of Bibles and religious materials from overseas to China, I will be punished severely on my return. I seek protection from Australia government.’

(real names have been omitted)

3                     A delegate of the first respondent refused the application for a visa on 7 March 2006.  On 5 April 2006 the applicant sought a review of the delegate’s decision by the RRT.

4                     In its decision the RRT recorded:

‘In response to questions put by the Tribunal, the Applicant claimed that everything he claimed in his protection visa application was true and correct and there were no changes he wished to make ...’

5                     There is then recorded, in summary form, a reasonably detailed examination, with the applicant, of the foundation for the particular claims made in his typed statement.

6                     The ground for the application in this Court, for leave to appeal against the judgment of the Federal Magistrates Court, is that s 424A of the Migration Act 1958 (Cth) (‘the Act’) was not complied with.

7                     Section 424A provides:

 ‘(1)     Subject to subsection (3), the Tribunal must:

(a)               give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)               ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)                invite the applicant to comment on it.

(2)               The information and invitation must be given to the applicant:

(a)               except where paragraph (b) applies – by one of the methods specified in section 441A; or

(b)               if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.

(3)       This section does not apply to information:

(a)        that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)        that the applicant gave for the purpose of the application; or

(c)        that is non-disclosable information.’

8                     It may be seen that the obligations in s 424A(1) (upon which the applicant specifically relies) and the direction in s 424A(2) (upon which he also relies) do not apply to information of the kind identified in s 424A(3).

9                     It has been held that the reference in s 424A(3)(b) is to the application for review by the RRT, and not the original application for a visa (see Minister for Immigration and Multicultural Affairs v Al Shamry [2001] 110 FCR 27 at 33-34 [17], 38-39 [35]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 475-6 [18]-[20]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 222 [9], 252 [154] and 256 [183].

10                  ‘Information’ is not a narrow concept (see Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at 217-218 [17]-[22]).  It includes knowledge and assertions which might be relied upon in the decision-making process.  Clearly enough, the content of the typed statement was adopted by the applicant in the hearing before the RRT.  In addition, there was further exploration of the matters referred to in the statement.  It is now settled in this Court that information which is given orally in a hearing before the RRT, whether volunteered or in answer to a request for confirmation of material before the RRT in some other form (e.g. an original application for the visa in question) is to be regarded as ‘information … that the applicant gave for the purpose of the application’ (i.e. the application for review) and hence within the exception in s 424A(3)(b) to the requirement in s 424A(1) and (2) that it be given to an applicant in writing and his comments invited (see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs) (2006) 150 FCR 214 at 242 [91], 254 [173] and 268 [264], SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42]-[43], SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [59]-[60], SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1359 [24].

11                  In the present case, confirmation at the outset that the matters advanced in the visa application and the accompanying statement were true and correct and still relied upon was a basic starting point for the discussion which followed.  The allegation of a breach of s 424A of the Act therefore cannot be made out. 

12                  As a result of its enquiries of the applicant, the RRT was not satisfied that he was a Christian or that he was in the past, or would be in the future, persecuted in China on the basis of religion.

13                  On 21 August 2006 the applicant filed, in the Federal Magistrates Court, an application for judicial review of the decision of the RRT.  The application alleged breach of s 424A of the Act but provided no particulars.  On 27 November 2006 Driver FM dismissed the application for judicial review pursuant to Rule 44.12 of the Federal Magistrates Court rules for the reason that it disclosed no arguable case of jurisdictional error.  That judgment is interlocutory (see Federal Magistrates Court Rules – Rule 44.12(2)).

14                  Leave to appeal to this Court is required (see Federal Court of Australia Act 1976 (Cth) s 24(1A)).  Conventionally, one important matter to consider in an application for leave to appeal is whether an appeal would have any prospects of success.  In this case, in my view, there are none.  No error in the judgment of Driver FM can be shown.  No jurisdictional error in the decision or proceedings of the RRT can be shown.  I will dismiss the application for leave to appeal with costs.

Associate:

Dated:         3 April 2007