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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming persecution in China - no reviewable error disclosed - application dismissed.

SZAYZ v Minister for Immigration [2004] FMCA 762 (3 November 2004)

SZAYZ v Minister for Immigration [2004] FMCA 762 (3 November 2004)
Last Updated: 19 November 2004


[2004] FMCA 762

MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming persecution in China - no reviewable error disclosed - application dismissed.

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601




File No:

SYG1381 of 2003

Delivered on:

3 November 2004

Delivered at:


Hearing date:

3 November 2004

Judgment of:

Driver FM


The applicant appeared in person

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Australian Government Solicitor


(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $4,000.




SYG1381 of 2003







(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 20 May 1999. The RRT affirmed a decision of the Minister's delegate to refuse to grant the applicant a protection visa. The applicant is from China and had made claims of political persecution.

2. It is apparent from the reasons for the decision of the RRT commencing on page 48 of the court book that the matters advanced by the applicant did not persuade the presiding member that he had a well founded fear of persecution. The RRT accepted some of the factual claims made by the applicant but was not persuaded that the harm allegedly suffered by the applicant constituted persecution.

3. The application for judicial review filed on 18 July 2003 is based upon a single ground. The applicant seeks to take advantage of the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. In order to succeed in that claim evidence would be required, or there would need to be an agreed statement of facts. There are no agreed facts.

4. The applicant attended a directions hearing in this matter on 18 September 2003 in person with a Mandarin interpreter. Registrar Kavallaris relevantly ordered the applicant to file and serve any affidavits upon which he intended to rely and any amended application by 10 December 2003. No affidavit evidence and no amended application has been filed. A document headed, "Application pursuant to section 39B of the Judiciary Act" was filed on 27 October 2004. Mr Lloyd, for the Minister, objected to the Court receiving that as an amended application or evidence as it had not been served on the Minister. The applicant told me that he had intended that document to be his written submissions. He was, in filing that document, intending to comply with order 3 made by Registrar Kavallaris on 18 September 2003. He told me that he handwrote the word "submission" at the top of that document. I received the document as written submissions but not as evidence or as an amended application.

5. I did receive into evidence the book of relevant documents prepared on behalf of the Minister. In addition, I received as an exhibit three letters that had been omitted from the court book. One of those is a letter critical to the consideration of the Muin and Lie claim. That is a letter from the RRT to the applicant dated 23 March 1999. In that letter, the RRT states that it had looked at all of the material relating to the application but was not prepared to make a favourable decision on that information alone. In addition to being addressed to the applicant at his home address, it was copied to his authorised migration agent. Although the applicant attended a hearing before the RRT, he denied the receipt of this letter. He told me from the bar table that he only found out about the RRT hearing through his migration agent. Apart from the absence of any factual basis to support the Muin and Lie claim, the denial by the applicant of his receipt of the critical letter is fatal to it. If the applicant did not receive the letter dated 23 March 1999, he could not been misled by it.

6. The applicant's written submissions filed on 27 October 2004 bear no relationship to the application for judicial review. I have, nevertheless, considered the issues raised in those written submissions. The first issue is a complaint about a finding made by the presiding member concerning a lack of physical harm being suffered by the applicant. On page 12 of her reasons (court book, page 59), the presiding member said:

While there are some doubts as to whether he was dismissed from his employment as a teacher or simply left for what looked like a better economic deal, he was not physically harmed, denied his right to housing, or to seeking other work and then granted the right to leave China.

7. The applicant asserts that he had, in fact, claimed to have been physically harmed and that the RRT overlooked that claim. The written claims made in support of the protection visa application are silent as to any asserted physical harm. There is no evidence before me of the applicant having made a claim of physical harm.

8. The applicant's written submissions filed on 27 October 2004 include a purported extract from the transcript of the RRT hearing. The purported extract has not been verified by affidavit or in any other way. The Minister's legal advisers did not see those written submissions until they attended court today and have not had any opportunity to verify the accuracy of the purported extract. However, even if the purported exchange between the applicant and the presiding member took place as asserted, it does not constitute a claim of physical harm. According to the applicant he told the presiding member that he was taken to a police station and interrogated. He asserts that a policeman said to him, "Your mouth is very tough", and that he was slapped once. He said nothing about the force of the slap or whether it resulted in any physical injuries. A single slap of unknown force without more does not, in my view, constitute physical harm. Such an allegation would not have provided on its own a proper basis for the presiding member to conclude that the applicant had been physically harmed. It would certainly have provided no basis for a conclusion that the applicant had suffered harm constituting persecution.

9. The applicant also takes issue in his written submissions with a statement by the presiding member on page 59 of the court book, that the applicant is young, intelligent, and has experience in information dissemination; qualities which make him employable. He asserts that there was nothing in what he put to the RRT that supported that conclusion.

10. The applicant's age is a matter of record and the presiding member was entitled to draw a conclusion that the applicant was young. The presiding member, like me, had the opportunity to see and hear from the applicant and was entitled to conclude that he is intelligent. The applicant himself presented evidence that he was a teacher which supported the conclusion that he had experience in information dissemination. It was reasonably open to the presiding member to conclude that the applicant had qualities to make him employable. The applicant himself had asserted that he had qualities of value to the Australian community.

11. The applicant, in his written submissions, also asserts a denial of procedural fairness. This is based upon a statement made by the presiding member (court book, page 58 and 59) that the applicant apparently changed from public to private sector employment for economic reasons. The applicant did not dispute that he had provided information to the presiding member that his income changed from 380 to 1000 yuan as a result of that change. However, he asserts that he lost other benefits including accommodation benefits when he gave up public employment. He told me that if he had an opportunity explain things more fully to the presiding member, a different conclusion on this issue might have been reached.

12. There are several answers to that proposition. The first is that I have no evidence that the applicant did not have an adequate opportunity to put to the presiding member whatever he felt was important concerning his change in employment. The second is that if the presiding member did not disclose the inference that she proposed to draw from the information provided by the applicant concerning his increase in income, she was not obliged to do so. Procedural fairness may require the RRT to disclose information material to the outcome of an application which is adverse to an applicant. It does not require a presiding member to disclose his or her thought processes formed on the basis of the information as presented. In any event, the issue of whether the applicant changed from a public sector to a private sector job for economic or political reasons was not determinative of the outcome of the proceeding before the RRT. What was relevant to the outcome of the proceedings before the RRT was that the presiding member concluded that whatever the reason for the change in employment, the applicant was able to continue to earn a living. The applicant does not dispute that finding.

13. The applicant has not, in his judicial review application, or in his written or oral or written submissions been able to demonstrate any jurisdictional error in the decision of the RRT. In addition, no jurisdictional error is apparent to me from my own perusal of the relevant documents.

14. Mr Lloyd submitted that, notwithstanding that a notice of objection to competency had been filed on behalf of the Minister on 18 September 2003, he did not press that notice of objection and neither did he seek to rely on either s.477(1A) or s.474 of the Migration Act. In the light of that concession, the judicial review application falls to be considered not on the basis of whether the RRT decision was a privative clause decision, but whether a jurisdictional or other legal error meriting the provision of prerogative relief had been demonstrated. It follows from my reasons as expressed above, the no basis for prerogative relief has been demonstrated by the applicant.

15. Accordingly, I will dismiss the application.

16. On the question of costs, the application having been dismissed, Mr Lloyd seeks an order for costs. The applicant simply invited me to follow appropriate legal procedure. I am satisfied that costs should follow the event in this matter. Mr Lloyd told me that costs of at least $5,000 have been incurred on behalf of the Minister in this matter. On a party\party basis he seeks a costs order fixed in the sum of $4,500.

17. I am satisfied that costs in the order of $4,000 would have been reasonably and properly incurred on behalf of the Minister on a party/party basis. I will order that the applicant pay the Minister's costs and disbursements of an incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM


Date: 11 November 2004
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