MZXMG v Minister for Immigration
[2007] FMCA 1048
•6 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXMG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1048 |
| MIGRATION – Refugee Review Tribunal – application failed on one element of visa – whether Tribunal required to decide other elements of visa conditions. |
| Migration Act 1958 s.424A |
| Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 Minister for Immigration and Ethnic Affairsv Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCR 719 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 513-514 [103]-[104] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 |
| Applicant: | MZXMG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1173 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 31 January 2007 |
| Date of last submission: | 31 January 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Latif |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 20 September 2006 be dismissed.
The applicant pay the respondent’s costs fixed at $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1173 of 2006
| MZXMG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People's Republic of China who arrived in Australia on 15 December 2005 on a visitor visa. The applicant sought a protection visa on 4 January 2006 on the basis that he was a Falun Gong practitioner for some five years and that if he returned to China he would face a real chance of persecution. The applicant claimed that he had been persecuted in the past by the Chinese authorities as a result of his adherence to the practice of Falun Gong.
On 8 February 2006 a delegate of the first respondent refused to grant the applicant a protection visa. He applied for a review by the Refugee Review Tribunal on 15 March 2006. An oral hearing was conducted on 27 June 2006, following which the Tribunal wrote to the applicant in accordance with s.424A seeking comments with respect to inconsistencies in his evidence about when he commenced practicing Falun Gong and his employment history in China. The applicant responded by providing a statutory declaration on 11 July 2006 addressing these issues. On 9 August 2006 the Tribunal handed down its decision in refusing the applicant's application.
The applicant relies upon two grounds before me (having elected not to pursue the third ground in the application):
1. The Tribunal by failing to make findings in relations to one of the applicant’s claims or a claim raised on the material before the Tribunal acted without or in excess of jurisdiction, and/or misconstrued and/or failed to deal with an essential element or integer of the applicant’s claims.
2. Alternatively to ground 1, if the Tribunal did make a finding in relation to the claim raised on the material before it, the Tribunal acted without or in excess of jurisdiction, by engaging in a fact-finding and reasoning process that was illogical unreasonable or irrational.
Ground 1
The thrust of the first ground is that the Tribunal erred in failing to consider each element of the conditions for a protection visa. To obtain a protection visa the applicant must demonstrate that:
a)he or she has a well-founded fear of persecution;
b)that the reasons for the persecution are reasons of race, religion, nationality, membership of a particular social group or political opinion;
c)that they are outside their country of nationality and are unable or unwilling to avail themselves of protection of that country due to their fears;
d)that the harm involved is serious harm; and
e)that the fear is well founded.
Each of these elements must be established in order to obtain the visa. If the applicant is unable to establish that his or her fears of persecution are based upon reasons of race, religion, nationality, membership of a particular social group or political opinion, then he or she cannot succeed in obtaining a protection visa.
The only reasons for persecution relied upon by the applicant was his practise of Falun Gong. If the applicant was rejected on this issue then he would not be entitled to a protection visa, whether the Tribunal ultimately accepted or rejected his claims with respect to any of the other elements of the visa application, such as having suffered detention or harm.
In its decision the Tribunal rejected the applicant’s claims that he was ever a Falun Gong practitioner in China (page 15 of the decision), and that his practice of Falun Gong in Australia was to ‘enhance his own claims to be a refugee’ (page 16).
The argument for the applicant was that the Tribunal must determine first determine whether the applicant had suffered detention and torture as he claimed, before deciding whether the detention and torture were due to a Convention reason.
Once the Tribunal has determined that one element cannot be fulfilled, it does not appear to me to be necessary for the Tribunal to then consider the other elements of the claim as the applicant cannot succeed from this point onwards. Which of the elements of the visa the Tribunal first considers is a matter for the Tribunal and will depend upon the facts and circumstances and presentation of individual cases. In a limited number of cases is may be that the evidence or outcome of one element of the claim will impact upon the considerations relevant to the other element of the claim. In such cases it may not be possible to determine the facts relevant to one element in isolation from the other elements of the claim.
In this case it was suggested that if the claims of detention and torture were accepted by the Tribunal, it may have led to the Tribunal finding that there was a real chance that the harm was for a convention reason, even though the reason propounded by the applicant was rejected. Whilst Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairsv Guo (1997) 191 CLR 559 are authority for the requirement that the ‘real chance’ test must be applied in appropriate cases, they do not require it to be considered in every case. As Sackville J said in Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCR 719 where his Honour said:
‘In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its. findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: W S Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.’
In this case there is nothing to indicate that the Tribunal had any real doubt in rejecting the applicant’s claim with respect to the reason for the alleged harm. Once rejected, there was nothing else in the evidence that could be the basis for a consideration of any other convention based reason for the harm. The ‘real chance’ test can not be satisfied by speculation.
In the circumstances I find that there was no jurisdictional error in the tribunal failing to decide if it was satisfied of each of the elements of the visa application, once it had determined that the applicant must fail on an essential element.
Ground 2
In support of ground 2, the applicant says that the Tribunal's decision to reject the applicant's claim that the past harm, and his risk of future harm based upon him being a practitioner of Falun Gong was irrational, illogical or unreasonable. The nature of claims of this type is discussed and applied in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30.
More recently, in Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 Rares J said:
[31] When a court exercising its power to review an administrative decision concludes that, in accordance with the above principles, the decision is ‘unreasonable’ its conclusion must be a finding that in truth the power conferred by the statute has not been exercised and so a jurisdictional error has occurred. This a feature of the rule of law which forms a fundamental assumption upon which the Constitution is based: Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 per Dixon J; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 513-514 [103]-[104] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The recognition by the Parliament, in statutory provisions like ss 368 and 430 of the Migration Act 1958 (Cth), that administrative decision-makers should give reasons for their decision and set out their findings, is a reminder to administrative decision-makers of an important aspect of the rule of law: namely, that they must provide the justification, in the reasons required by the statute to be given, for the exercise of the power with which they have been entrusted. And, the requirement to provide reasons is a means of ensuring that courts, when exercising the power of judicial review, are not obliged to approach their consideration of the exercise of the discretion in the same speculative way as in a case like Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.
In this case the Tribunal identified two specific matters which caused the Tribunal member to find that the applicant was not a witness of truth in relation to his practice of Falun Gong in China.
The first of these was discrepancies with respect to the time when he commenced practising Falun Gong. There was a discrepancy in the dates. Most significantly, the discrepancy was not simply by reference to calendar dates in isolation. Rather the dates could be clearly distinguished by reference to whether or not the applicant commenced his practice before or after a crackdown upon Falun Gong practitioners in China in 1999.
Counsel for the applicant argued that the Tribunal must have regard to the fact that many applicants can become confused about dates or events, and that had the Tribunal determined the applicant's claims with respect to being detained, this may have provided some corroboration for his version of events and led to a different finding with respect to his credibility on the issue relating to the reason for the alleged harm being inflicted. The question about possible confusion of dates was a matter for the tribunal to assess on the merits of the application.
I do not see that a finding on whether the harm actually occurred impacts on the findings about the applicant being involved in Falun Gong, in the context of this case. The fact that a person is believed on one issue does not necessarily mean that a Tribunal will accept their evidence on another issue.
The Tribunal also found that the applicant had given contradictory evidence over time about his employment history in China, and that he was not a credible witness with respect to his employment history.
In making findings about the applicant’s employment history the Tribunal member referred to the applicant claiming that he had been ‘dismissed’ from his employment as a security guard as a result of his continuing Falun Gong practice. The relevant passage in the hearing transcript shows that he claimed that the reason he left that job was:
… because I’m a Falun Gong member and police were looking for me, so I didn’t feel safe there. So that’s why I left.
This error of fact is a minor one. The thrust of the evidence remains the same – loss of employment as a result of Falun Gong membership. An error of fact, of itself, does not demonstrate a jurisdictional error. This is a minor error in the context of the reasons as a whole.
Whilst the matters raised by the applicant are important considerations in many cases, it is ultimately for the decision-maker to determine whether or not an applicant or witness is accepted. The matters specifically referred to by the decision-maker in this case logically lead to the conclusion the tribunal reached. It could not be said that these findings are irrational or so unreasonable that jurisdictional error has been established. Nor could it be said that the conclusions could have only be reasonably reached if one overlooked evidence before the Tribunal. Whilst others may have come to a different conclusion on the evidence, that is not, of itself, a basis for showing jurisdictional error.
In these circumstances it is difficult to see how this ground can succeed.
In the circumstances I therefore refuse the current application for review.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: J.McLean
Date: 6 July 2007
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