MZWQU v Minister for Immigration
[2005] FMCA 1054
•19 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWQU v MINISTER FOR IMMIGRATION | [2005] FMCA 1054 |
| MIGRATION – Protection Visa Refugee Review Tribunal – whether jurisdictional error. PRACTICE AND PROCEDURE – Whether new evidence should be received – whether decision of another Refugee Review Tribunal in a different matter be relied upon. |
| Migration Act 1958 |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | MZWQU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1155 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 19 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 19 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. J. G. Levine |
| Solicitors for the Applicant: | Issac Brott & Co. |
| Counsel for the Respondent: | Mr. E. J. C. Heerey |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
The Applicant be granted leave to amend the application nunc pro tunc by adding a Second Respondent the ‘Refugee Review Tribunal’.
The Second Respondent be granted leave to file and serve a notice of appearance.
The application filed 3 September 2004 be dismissed.
The Applicant shall pay the Respondent's costs fixed in the sum of $6500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1155 of 2004
| MZWQU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application seeking review of a decision of the Refugee Review Tribunal (“the RRT”) dated 10 August 2004, where the RRT had affirmed a decision by a delegate not to grant to the applicant a protection visa. The applicant who is represented has sought to rely upon what is described as amended applicant's contentions of fact and law filed 18 July 2005. No formal application was made to amend the application which had been filed on 3 September 2004. The document which I have referred to entitled “Amended Applicant's Contentions of Fact and Law” purports to raise new issues, and in particular, I note that in paragraph (B)(4) it refers to error being made by the RRT in taking into account an irrelevant factor and denying the applicant natural justice in making an assessment based on a statement in his student visa application.
There is correspondence from an insurance company stating the applicant's father was employed as a business manager and that there was a business card from that company showing the father's name. Criticism is made in relation to that matter as dealt with by the RRT. Perhaps more significantly, the amended document also seeks to raise in this Court an entitlement of the Court to take into account new evidence, specifically paragraph (B)(7) provides the following:
“The Federal Magistrates’ Court is entitled to take into account new evidence that came into existence after the hearing of the matter at the Refugee Review Tribunal. The fact that the Chinese government has refused to renew the Applicant's Chinese passport is a powerful consideration that is relevant for an assessment of the merits of the Applicant's claim for a protection visa. This matter did not occur prior to the Applicant hearing in the Refugee Review Tribunal and it would have been a matter that the tribunal would have been bound to take into consideration.”
It seems to me that the amended applicant's contentions of fact raises a preliminary issue namely, the question of whether or not what effectively might be regarded as new particulars and/or new grounds can now be raised at this late stage, and secondly whether or not this Court is indeed entitled to take into account new evidence that has come into existence purportedly after the hearing of the matter at the RRT. It is not uncommon for this Court to permit an amendment to an application, nor for unrepresented applicants to be permitted to expand upon the grounds relied upon in an application, perhaps not fully explained in documents and which are then the subject of elaboration by way of oral submission. However, where an applicant is represented, the Court in my view, is entitled to expect that grounds and any amendment to an application ought to be properly formulated at an early stage. However, for the present purposes, I am prepared to take into account what purports to be the additional material in paragraph (B)(4) of the amended document. I do so for reasons which will become apparent further in this decision.
The discrete issue, however, as to whether or not the Court on judicial review of an RRT decision made 10 August 2004 is entitled or should receive new evidence, is a matter which ought to be determined prior to determining the substantive claim. It is rare for a Court undertaking judicial review to permit any party to adduce new evidence in relation to the merits of a claim which had been dealt with by a delegate and subsequently by the RRT. To receive evidence concerning what has occurred in relation to the applicant's passport since the RRT evidence in my view is inappropriate. It is inappropriate as it could not legitimately form part of the judicial process of review of an RRT decision, and further, in my view, is otherwise irrelevant to the Court's task. It may be relevant in support of any other representations which may or may not be made by the applicant directly to the Minister, and/or may arise under other provisions under the Migration Act 1958, but those matters are not matters for consideration by this Court. In any event, I note in passing that although there is a reference to what is described as new evidence, no affidavit material has been produced, no documentary material produced of a kind which could be examined, and in any event the process sought to be invoked is a process entirely inappropriate for judicial review. It is neither relevant or appropriate for the Court to take into account the purported new evidence concerning the passport. I rule that the Court should not permit that material to be relied upon.
By way of background, I note from the respondent's contentions of fact and law the following:
·The applicant is an unmarried 23-year old male citizen of China who at first arrived in Australia under a student visa on 3 October 2000.
·On 29 November 2000 he travelled to China and returned again to Australia on 31 January 2001.
·He travelled again to China on 29 June 2001, returning to Australia on 2 August 2001, and has since remained in Australia.
·On 11 July 2002 the applicant student visa was cancelled for non-compliance with visa conditions.
·He sought review of that decision in the Migration Review Tribunal (the MRT) which affirmed ultimately the cancellation of the visa in a decision made 10 January 2003.
·On 5 February 2003 the applicant lodged an appeal in that decision in the Federal Court of Australia which it is understood and it is common ground was withdrawn on 4 April 2003.
·On 13 October 2003 the applicant applied to the respondent's department for a protection visa and provided written submissions in support of that application.
The claim for refugee status was based upon a claimed involvement by the applicant in the Fa Lun Gong activities in Australia since 2002, including his own role in organising a group called the Youth Group of Falun Dafa in Australia, YGFD, which included detailed membership cards and regular publication of newsletters and meetings in Melbourne. Reference in the claim was also made to prior treatment of the applicant's parents in China. The delegate's decision to refuse the grant of a protection visa was made on 27 February 2004, and thereafter on 1 April 2004 the applicant lodged an application for review with the RRT. The hearing was conducted on 20 July 2004. Other evidence was given by another witness, and the applicant provided further documentary evidence consisting of brochures regarding the Fa Lun Gong.
As indicated earlier, the decision was made on 10 August 2004 by the RRT affirming the delegate's decision. It is clear on a proper analysis of the Tribunal's findings that it had considered general issues concerning the treatment of Fa Lun Gong followers. Under the heading “Findings and Reasons”, (court book page 176), the RRT makes a number of findings which could only be described as significant adverse findings as to credit of the applicant. It otherwise made findings in relation to the treatment of the applicant, and in particular made reference to any official sanction because of the applicant's parents. It noted the evidence of the applicant's movements to and from China. After hearing the evidence, the RRT as part of its ‘findings and reasons’, draws the following conclusions at Court book page 177:
“The applicant claims he left PRC in 2000 because his mother was concerned about his safety in PRC. The Tribunal does not accept this was the reason for him leaving at that time. Prior to leaving, he obtained a placement at an Australian eduction institution, and a student visa to enter Australia. The Tribunal finds his reason for leaving PRC in 2000 was to continue his education, and not because of safety concerns.
This leaves the issue of the applicant's activities in Australia. Whilst the Tribunal does not accept the applicant's evidence on a number of issues, there is material which shows the applicant has engaged in activities in Australia, which could have drawn him to the attention of PRC authorities present in this country. These consist of his involvement in a group called YGFD and activities associated with that group and Falun Dafa generally, and his activities in publicly protesting outside the PRC consulate. Whilst the Tribunal accepts such activities may have occurred, it considers the motivation of the applicant in establishing and publicising that group and his involvement was contrived entirely for the purpose of creating an adverse profile, and for the sole purpose of strengthening his claim to need refugee status.
Similarly whilst the Tribunal accepts that the applicant may have an understanding of the concepts and beliefs of Falun Gong, it is not satisfied he is in fact a genuine believer or follower of that practice. In reaching this conclusion, the Tribunal does not accept the applicant's evidence as to his own practice of Falun Gong or the reasons for the formation and involvement in a group said to be related to Falun Gong to be credible. Having reached this conclusion, the Tribunal is also satisfied he would not practice Falun Gong if he returned to PRC now or in the reasonably foreseeable future, and that the reason he would not do so is because he is not a genuine Falun Gong believer.”
The RRT goes on to state that:
“The material available suggests the YGFD was a creation of the applicant in about December 2002, (immediately after the MRT hearing into the cancellation of his student visa) for the specific purpose of demonstrating risk to him if he returned to PRC. Whilst the timing of the formation of the group alone is not conclusive, the Tribunal considers that the highly public manner in which the applicant seeks to promote his association with that group is consistent with a scheme to bolster his refugee claims, rather than any genuine belief in Falun Gong as a religion or ideology. In this respect the Tribunal notes that the group purports to have highly visible and detailed membership cards, which appear to serve no purpose other than to publicly identify the carrier of the card as a Falun Gong participant. The existence of the group itself also appears to serve little purpose beyond exposing members (such as the applicant) to scrutiny by the very elements he says he fears (PRC authorities and their “spies”) as does his activity in putting his own photograph in group documents he says he distributes, which are openly critical of PRC policy of Falun Gong.
The existence of a group such as the YGFD itself is inconsistent with the mainstream practice of Falun Gong, which is said to have no formal organisation or hierarchy and does not keep records of membership (see the Asia Week and UK Home Office Reports above).”
I interpolate here to note that extracts from those two reports are set out in the RRT decision. The RRT then goes on to state:
“The YGFD described by the applicant appears quite formal. It is said to have membership and identification cards, charges membership fees of $200 a year, which he manages, and which meets formally with minutes of those meetings. Despite these formalities however the group lacks some attributes associated with a formal association or organisation. It not registered, maintains no bank accounts in its name, and has no official status. These factors, along with the timing of its formation lead the Tribunal to the conclusion the true purpose of YGFD is to focus attention on the applicant and his claim to be linked to Falun Gong, in order to establish and strengthen his claim to be a refugee and to fear persecution if he returned to PRC.”
Further in its decision under its findings, the RRT considers the issue of delay in seeking a protection visa. It states the following:
“The Tribunal considers the delay in seeking a protection visa is significant in this case, and goes directly to whether the applicant had a well-founded fear of persecution. He says he first commenced involvement in Falun Gong in 2001, prior to his last return to PRC in that same year. He did not however raise any concern about Falun Gong related to persecution until October 2003, by which stage he had already explored and followed his avenues to challenge the cancellation of his student visa.
The Tribunal finds that although he had clear opportunity to do so, the applicant did not raise the need for protection until after he had exhausted his options in respect to the cancellation of his student visa. In this regard, the Tribunal does not accept his explanation that he did not recognise the risk of Falun Gong until towards the time he lodged the protection application. By that stage, on his own evidence, he had been publishing documents highlighting PRC treatment of Falun Gong supporters, in protesting outside the Consulate, and had formed his own group (YGFD). It considers his reliance on a protection visa was a “last resort” to remain in Australia, not made for over two years after he claims to be involved in Falun Gong, and for some six months after he says he decided to withdraw his Federal Court appeal against cancellation of his student visa in order to seek protection.
The Tribunal considers that had the applicant legitimately feared persecution by PRC authorities for reasons associated with Falun Gong, he would have sought protection far sooner.”
It is probably fair to conclude that those findings, amongst others, could be properly regarded as significant adverse findings of credibility as indicated earlier in this judgment. It is clear that the findings are based upon an exploration of the facts then available to the RRT. A significant finding, in my view, which could only be described as fatal to the application which essentially was based on membership of Fa Lun Gong, is that the RRT was not satisfied that this applicant is in fact a genuine believer or follower of the practice.
In considering the grounds relied upon in the application, it is difficult, in my view, to discern any or any proper basis upon which this Court should intervene in this matter. The application refers to failure by the Tribunal to properly understand the criteria which the applicant had to establish by evidence to be eligible for the grant of a visa, failure to deal with or consider the case as presented, failure to deal with a claim that he would be subject to fear out of persecution and torture by reason of his membership of Fa Lun Gong, and otherwise it is claimed that it misinterpreted the actions of the applicant in his previous application to the MRT or asked itself the wrong questions and took into account material which was irrelevant.
It seems to me that essentially the grounds relied upon, which are not recited fully but which I refer to, including particulars subjoined to the grounds, effectively seek to agitate the merits of the application. It is noted that the respondent submits that there is no jurisdictional error of a kind which would attract judicial review of this decision.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).”
One issue which arose during the course of submissions was whether or not this Court should have regard to a decision of a differently constituted Refugee Review Tribunal in an application, RRT reference VO4 16655. That was a decision of a differently constituted Tribunal made on 8 March 2005. At one stage it was suggested the conclusions reached by the differently constituted RRT in that case should somehow have been taken into account by the RRT whose decision is under review by this Court. Clearly the dates of the relative decisions would make that impossible, even if it were a relevant task. In my view, it is inappropriate for this Court to take into account findings of fact by a differently constituted RRT in relation to an analysis of the Falun Gong, or indeed any other findings of fact which may or may not have been open to the differently constituted RRT on the material then before it in determining whether or not there has been any jurisdictional error or error of a kind which would attract judicial review of an RRT decision currently before this Court.
For this Court to embark upon an analysis of other RRT decisions, decided as they no doubt may be as a result of different information, different considerations and indeed change in circumstances, is both inappropriate and unwise. I reject the suggestion that this Court could somehow place any weight at all upon the decision of the differently constituted RRT to which I have referred.
On a proper analysis of the material, and having regard to the authorities to which I have referred of the Full Court of the Federal Court in VAT, it is my concluded view that in this matter there were no grounds made out which would justify this Court interfering with the decision of the RRT. There is no jurisdictional error. Instead what has occurred is what might be described as a fact-finding mission and an adverse finding as to credibility which is often referred to as a finding ‘par excellence’ by the Tribunal, having considered the case as put to it by the applicant and having weighed the evidence then before it. Findings of credibility are matters which are significant. They are usually matters open to the fact-finding Tribunal, and Courts should be very reluctant to interfere with those findings on judicial review. In this instance I cannot see any basis upon which I could conclude that there is jurisdictional error of a kind which would permit judicial review. It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 19 July 2005
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