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MIGRATION - Review of RRT decision - protection visa - whether the applicant had a well-founded fear of persecution for Convention reasons - credibility of evidence.

NASR v Minister for Immigration [2002] FMCA 343 (9 January 2003)

NASR v Minister for Immigration [2002] FMCA 343 (9 January 2003)
Last Updated: 28 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASR v MINISTER FOR IMMIGRATION
[2002] FMCA 343



MIGRATION - Review of RRT decision - protection visa - whether the applicant had a well-founded fear of persecution for Convention reasons - credibility of evidence.



Judiciary Act 1903 (Cth) s.39B

Migration Act 1958 (Cth)

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Applicant:
NASR



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 933 of 2002



Delivered on:


9 January 2003



Delivered at:


Sydney



Hearing Date:


20 December 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented



Counsel for the Respondent:


Mr R Bromwich



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $3750 according to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 933 of 2001

NASR


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a national of the Peoples Republic of China (PRC) who claims to have arrived in Australia from the United States some time in September 1997. He was detained as a prohibited non-citizen on 4 March 2002 and remains in detention. On the 11 March 2002 he made an application for a protection visa (Class XA) and the delegate of the Minister declined to grant him such a visa on the 9 May 2002. On the 15 May 2002 he sought a review of that decision by the Refugee Review Tribunal. The applicant, together with his adviser and an interpreter, attended a hearing before the Tribunal on the 11 July 2002. The Tribunal made its decision on the 23 July 2002 and affirmed the decision of the delegate.

2. The applicant's grounds for seeking an order for review state, inter alia:

"I do not agree with the decision made by the RRT member. I have submitted many evidences with me to support my application but he just did not want to believe my situation. I am in a very dangerous situation and I could not go back to my own because of the fact that I will be put in death penalty if I am sent back to China, not because I have broken a law of general application as a goal guard but because I released a political prisoner."

3. The applicant's claim to a well-founded fear of persecution for Convention reasons arises out of the fact that in 1995 he was working as guard in a gaol in the Fujian Province. A prisoner there, Mr Zhen Hong Di came to his attention. He felt sorry for Mr Zhen. He claimed that Mr Zhen was a political prisoner who was in gaol for assisting other dissidents to escape from China. The applicant claimed that he assisted Mr Zhen to escape from the prison. Mr Zhen reached freedom in Hong Kong but was apparently arrested by Chinese authorities on route to Macao in 1999. The applicant followed Mr Zhen into exile in 1995. He first went to the United States of America but then in 1997 came to Australia. He has remained in Australia ever since. The applicant claims that if he is returned to the PRC he will be executed for assisting a dissident to escape. The applicant gave evidence before the Tribunal and also called two witnesses. One of those witnesses claimed to have been given information about the applicant's activities in China by the applicant in 1997 and also, to have visited the applicant's family in PRC very recently. The information provided corroborated the applicant's claims. The Tribunal was prepared to accept this witness as a witness of truth so far as he was reporting was what told to him. However, the Tribunal came to the view that it could not rely on the truth of the information itself.

4. The Tribunal carefully examined the evidence given by the applicant through his written documentation and oral appearance. It pointed out inconsistencies and incongruities. In particular it relied on a statement by the applicant that the penalty for assisting a political dissident to escape would not be different to that for assisting a prisoner to escape. The Tribunal came to the conclusion that it had severe doubts as to whether Mr Zhen was, in any event, a dissident. The Tribunal suspected he was a people smuggler. At [CB 191] the Tribunal considered these matters:

"If, for arguments sake, the Tribunal were to treat the applicant's claims to the extent possible at face value, for example, much in the manner adopted in the adviser's last submission, it would still not be able to reach the views on those claims that were argued by the adviser in that submission. The Tribunal would still conclude that the penalty for a guard who releases a prisoner in the PRC would be the same no matter who was involved, as the applicant himself claimed at one point of the hearing. This was his position until its potential implications for his overall case were explained to him, after which he changed his position radically, saying that his fate would be more serious because of the political profile of the person he helped. Whether or not a Tribunal accepts that the alleged prisoner, Zhen, had a political profile, and in the applicant's evidence, that profile was as marginal as his own, the Tribunal would still conclude that that had negligible bearing on the kind or degree of punishment the applicant, a prison guard who claims he broke the law and then went AWOL, would receive."

5. The Tribunal went on to note that the applicant had not sought asylum in the United States where he had remained for two years nor had he sought asylum in Australia until he was detained.

"The Tribunal sees the applicant's failure to make a claim in the USA as forming a pattern with his delay in doing so here, and concludes that cumulatively this is evidence of his having had priorities in his travels other than protection from persecution." [CB 191]

6. The applicant, who confirmed that he had received advice under the Minister's scheme, appeared on his own behalf. He did not raise any matter which would ground judicial review under s.39B of the Judiciary Act 1903 (Cth) so far as such review was permitted by the Migration Act 1958 (Cth). He, rightly, does not attack the bona fides of the decision-maker and it is not suggested that any other of the exceptions to the Hickman principle expounded by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 applied.

7. In the circumstances I am unable to find any grounds for review.

I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3750 according to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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