SZBWA v Minister for Immigration

Case •

[2007] FMCA 188

•

14 February 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBWA v MINISTER FOR IMMIGRATION [2007] FMCA 188
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – application is a citizen of China claiming fear of persecution as a practitioner of Falun Dafa – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 474
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Applicant: SZBWA
Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
File number: SYG 2949 of 2006
Judgment of: Scarlett FM
Hearing date: 14 February 2007
Date of last submission: 14 February 2007
Delivered at: Sydney
Delivered on: 14 February 2007

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondent: Ms Nolan
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The title of the first respondent is changed to Minister for Immigration & Citizenship.

  2. The application is dismissed.

  3. The applicant is to pay the first respondent’s costs fixed in the sum of $3,800.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2949 of 2006

SZBWA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

  1. The application before the Court is an application for review of a decision of the Refugee Review Tribunal.  The Tribunal signed its decision on 21st August 2006 and handed that decision down on


    12th September.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (class XA) visa. 

  2. The applicant is and has been found to be a citizen of the People’s Republic of China.  He arrived in Australia on 14th September 2002 and on 4th October applied for a protection (class XA) visa.  A delegate of the Minister refused to grant the applicant that visa on


    12th November 2002, so he sought a review of that decision from the Refugee Review Tribunal.  The Tribunal affirmed the delegate’s decision on 12th September 2003.  The applicant then sought judicial review of that decision from the Federal Magistrates Court.  After he was unsuccessful in that Court, he appealed to the Full Court of the Federal Court and on 19th April 2006 that Court allowed the appeal as a result of orders made by consent.  The application was remitted to the Tribunal for determination.  

  3. The Tribunal then wrote to the applicant and asked him to provide within 14 days any documents or written arguments that he wished the Tribunal to consider.  That letter was written on 2nd June. 


    On 7th June the Tribunal again wrote to the applicant.  That letter confirmed the invitation to provide any documents or written arguments for consideration by the Tribunal and went on to tell the applicant that the Tribunal had information that would, subject to any comments that he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa.  That letter then set out in four paragraphs what that information was.  It related to his claims about his practice of Falun Dafa. 

  4. The letter set out why the Tribunal believed that information was relevant and then asked the applicant to comment on the information by 3rd July 2006.  A copy of that letter is set out on pages 63 and 64 of the Court Book.  The applicant provided a one and a half page typed statement about his history and his practice of Falun Dafa. 


    The Tribunal wrote to him, inviting him to attend a hearing to take place on 2nd August.  The applicant attended that hearing.  He provided a copy of his passport issued by the People’s Republic of China. 


    The applicant gave evidence to the Tribunal and the Tribunal asked the applicant a number of questions and put certain propositions to him. 

  5. The Tribunal noted that the applicant did not respond to the invitation to comment contained in the letter of 7th June, which is, I am satisfied, a letter written in accordance with the provisions of s.424A of the Migration Act. The Tribunal’s findings and reasons are set out on


    pages 98 through to 100 of the Court Book.  The Tribunal accepted that the applicant was a citizen of the People’s Republic of China and I note that the Tribunal had evidence in the form of the applicant’s passport which was sufficient for the Tribunal to make that finding. 


    The Tribunal accepted the basic information about the applicant’s birth and residence and working history in China and about his marital status and his status as parent. 

  6. However, the Tribunal did not accept that the applicant was a Falun Dafa practitioner or that he had ever practised Falun Dafa in China.  The Tribunal set out that it did not accept that the applicant was a practitioner of Falun Dafa because he had no knowledge of Falun Dafa practice and admitted that he had not practised Falun Dafa in Australia.  The Tribunal went on to comment that when his lack of knowledge was put to him the applicant claimed that he only practised Falun Dafa occasionally.  The Tribunal disbelieved that explanation, saying that the Tribunal considered that evidence was given at the hearing to explain the applicant’s lack of knowledge.  The Tribunal did not accept that the applicant had ever practised Falun Dafa. 

  7. The Tribunal went on to examine details of the applicant’s history and noted that the applicant gave evidence that he had first come to Australia with a tour group and had then returned to


    China with that group.  That clearly weighed heavily with the Tribunal because the Tribunal commented on page 98:

    I find his conduct in returning to China at the end of that tour is not consistent with a genuine fear of persecution and I do not accept that he returned to China on the first occasion because he was not in possession of his passport.  I consider that if he had been genuinely fearful he would have sought out advice as to his situation. 

  8. The Tribunal went on to find that as the applicant was not accepted to be a Falun Dafa practitioner or was wanted for any pro-Falun Dafa views, the Tribunal did not accept that he had ever been arrested, questioned or mistreated by authorities regarding any Falun Dafa activities or that he was summoned to the police station in 1999 but avoided arrest.  

  9. The Tribunal noted that the applicant had paid a large amount of money for assistance in obtaining an Australian visa and considered that he came to Australia to improve his financial circumstances. 


    The Tribunal did not consider that the applicant had a genuine fear of persecution if he were to return to China at the time of the hearing or in the foreseeable future.  The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and affirmed the decision not to grant the applicant a protection (class XA) visa. 

  10. The applicant commenced proceedings in this Court for review of that decision.  He seeks orders in the nature of certiorari and mandamus and sets out three grounds for his application.  Those grounds are as follows:

    (1)  The Tribunal failed to carry out its statutory duty. 

    (2)  The Tribunal failed to consider the whole of my claim.

    (3)  The Tribunal failed to consider that in China people could be sent to jail even if he or she just explained that Falun Gong is good.

  11. The applicant has not provided any written submissions but has attended Court today and has made oral submissions.  He told the Court that the reason why he had come to Australia was because he believed that Australia would give him a satisfactory answer.  He said that in China he practised Falun Gong and he had protected some Falun Gong practitioners.  He said the Chinese authorities had been looking for him because he had provided protection for Falun Gong practitioners.  He said he was afraid to return to China and that he told his experiences to the Tribunal member.  He said he was not only an ordinary practitioner in China, but he was an organiser.  The applicant did not provide any particulars in support of the three grounds that he provided.

  12. I have read through a very helpful written outline of submissions from Counsel for the first respondent Minister, Ms Nolan.  In her outline of submissions she points out, quite correctly, that the first ground of review, namely that the Tribunal failed to carry out its statutory duty, is unparticularised and is untenable in that form.  She went on to submit that a review of the Tribunal’s decision reveals that there is no statutory duty incumbent upon the Tribunal which it did not fulfil. 

  13. Turning to the second ground of review, which was the failure to consider the entirety of the applicant’s claims, she submits that a review of the Tribunal’s decision reveals that the Tribunal addressed each of the applicant’s claims in turn.  Accordingly, she submits there is no merit in the allegation that the Tribunal failed to consider the applicant’s claims. 

  14. Finally, in respect of the third ground of review, Counsel for the respondent Minister submits that the failure by the Tribunal to make a finding of the kind referred to, namely that in China people could be sent to jail even if they just support Falun Gong or explain that it was a good thing, is not and does not amount to a failure to take into account relevant consideration.  She submitted that the Tribunal is only required to make findings on questions of fact which it considers material. 


    That approach is all that is required of the Tribunal in respect of its reason and I am referred to the decision in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68].


    Accordingly, Counsel for the respondent submits that no claim of jurisdictional error can be sustained because no error has been identified.

  15. In oral submissions Ms Nolan told the Court that the applicant’s oral submission was essentially a restatement of the claims that he made before the Tribunal.  The applicant did not seek to address the Court in reply. 

  16. In considering the three grounds in the applicant’s application, I am unable to discern any failure by the Tribunal to carry out its statutory duty. It appears to me that the Tribunal did comply with the provisions of s.425 by inviting the applicant to attend the hearing and give evidence. It certainly appears that the Tribunal complied with the requirements of s.424A of the Migration Act in writing to the applicant on 7th June 2006 inviting him to comment on certain information, setting out what that information was, explaining why the Tribunal considered it relevant and pointing out that, subject to any comments the applicant made, the information would be such as to form reasons or part of the reasons for affirming the delegate’s decision. The letter appears to me to comply fairly and squarely with the provisions of s.424A of the Migration Act. The applicant did not provide any comments.

  17. In my view, there is no evidence of any failure to carry out a statutory duty.  Similarly, there is no evidence that the Tribunal failed to consider the whole of the applicant’s claim.  As Counsel for the first respondent submitted, the Tribunal went through the applicant’s claim in detail quite carefully and set out reasons why the Tribunal did not accept what the applicant put.  As to the third ground, that the Tribunal failed to consider that in China people could be sent to jail for expressing support to Falun Gong, in my view, that is largely a complaint going to the merits of the Tribunal decision and, as Counsel for the first respondent submits, the Tribunal is only required to make findings on questions of fact which it considers material.  The fact that the Tribunal did not make a specific finding about the point referred to by the applicant is not a failure to take into account a relevant consideration.  

  18. The applicant has today effectively restated the factual basis of his claims to the Tribunal. As I put to the applicant at the hearing, he may have given evidence to the Tribunal but the Tribunal had not accepted his claims. No jurisdictional error has been made out. As there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub-s. 474(2) of the Migration Act.

  19. Accordingly, under sub-s. 474(1) of the Act, the decision is not subject to orders in the nature of certiorari or mandamus which the applicant seeks.  It follows therefore that the application must be dismissed. 

  20. There is an application for costs on behalf of the first respondent Minister. The Minister has been successful. The applicant has been unsuccessful. There is nothing to give reason for the Court to depart from the practice that a successful party should be entitled to an order for costs. The amount sought $3,800.00, is a relatively modest sum and is well within the amount provided by the Federal Magistrates Court Rules. I order therefore that the applicant is to pay the first respondent’s costs fixed in the sum of $3,800.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  22 February 2007

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