SZCKY v Minister for Immigration
[2005] FMCA 1398
•12 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCKY v MINISTER FOR IMMIGRATION | [2005] FMCA 1398 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of the People’s Republic of China – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 475A Federal Magistrates Court Rules 2001 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZCKY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 61 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 September 2005 |
| Date of Last Submission: | 12 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Mr Markus Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,500.00 and I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 61 of 2004
| SZCKY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal. The Tribunal heard evidence from the applicant on 25th September 2003. The Tribunal made its decision on 26th November and handed down its decision on 22nd December 2003. The decision of the Tribunal was to affirm a decision of the delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of the People's Republic of China. He arrived in Australia on 31st August 2002. On 24th September that year he lodged an application for a protection visa. In that application he claimed to have a well-founded fear of persecution for a Convention reason.
He claimed that he was forced to pay a large sum of money to bribe the police to give him a passport. The applicant's claim of a well-founded fear of persecution arises because he claims that he was subjected to discriminatory treatment because he followed the practices of Falun Gong. He said that he had begun to practice Falun Gong in 1997 and after 1999 when the Falun Gong movement was banned, he practised Falun Gong secretly. He said that he was detained by the authorities and was beaten and forced to reveal the names of other Falun Gong practitioners. He said that he was released after his family paid a bribe to the police. He said that he was forced to resign from his job and was later forced to close his grocery business. He said that he was placed under the supervision of a police sergeant called Wang who had detained him and demanded bribes from him. He said that his family borrowed money so that he could obtain a passport and leave China.
The applicant attended the hearing of the Refugee Review Tribunal. He gave evidence to the Tribunal and the Tribunal member asked him a number of questions. These questions concern the supervision and harassment of him by Sergeant Wang and about his practice of Falun Gong. The Tribunal asked him a number of questions about this practice and asked him to draw the Falun Gong emblem. The Tribunal asked him to demonstrate and name the Falun Gong exercises.
The Tribunal asked him a number of other questions about his claim.
In its findings the Tribunal did not accept that the applicant was a Falun Gong practitioner in China or that he practised Falun Gong in Australia. The Tribunal based that finding on his faulty knowledge of one of the Falun Gong exercises and his inability to demonstrate any of the other exercises or to name any of them. The Tribunal did not accept that the applicant was denounced to the police in July 2001 as a Falun Gong practitioner. The Tribunal did not accept any of his claims about his treatment by one Sergeant Wang. The Tribunal said that it considered that Sergeant Wang was pure invention aimed at trying to bolster the applicant's case. The Tribunal did not accept that the applicant has obtained his passport and exit visa through bribery.
The Tribunal preferred the country information over the applicant's evidence on that point. The Tribunal did not accept the applicant's claim that he feared persecution because he waited two and a half months after receiving a visa to go to Australia before leaving China. The Tribunal did not consider that a delay of two and a half months was consistent with a genuine fear of persecution in China.
The Tribunal, in summary, did not accept the applicant's claims in any significant way and found that he did not have a well-founded fear of persecution for reason of his religion or membership of any social group.
The applicant commenced proceedings by means of an application filed on 12th January 2004. He filed an amended application on
30th June 2004 and accompanied the amended application with an affidavit filed that same day. The affidavit asserted that the applicant was a genuine refugee and that he believed he was entitled to a permanent residence visa and that the Refugee Review Tribunal did not take into account evidence given to it when making its decision.
The applicant annexed a written statement to that affidavit, together with a typed English translation. The statement related solely to factual matters and sought to challenge the factual findings made by the Tribunal. I accepted the affidavit with its annexure as a submission on behalf of the applicant.
The applicant also sought to lead evidence relating to his recent divorce. As it appeared, the divorce decree had been made in
April 2005. I did not allow that decree into evidence.
In his amended application the applicant claims that the Tribunal made a number of jurisdictional errors. At paragraph 6 of the amended application the applicant said:
In making the decision, the Tribunal's finding of a number of jurisdictional facts was not reasonable.
The applicant provided three examples of findings that he said that could not have reasonably been reached. It was submitted on behalf of the respondent Minister that those findings were not findings relating to jurisdictional facts. The Minister's solicitor, Mr Markus, further submitted that this ground was tantamount to asking the Court to review the decision on the merits. In my view, the respondent's submission is well founded and it is trite law that a Court conducting judicial review does not reconsider the factual findings made by the decision-maker. I refer to the decision in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In paragraph 7 of the amended application the applicant said:
The Tribunal has ignored relevant considerations when making its decision.
There were four instances given of what the applicant said were relevant considerations that had been ignored. These again were no more than an attempt to challenge the Tribunal's decision on the merits: the applicant's claims that he was still practising Falun Gong as religion, that overzealous government officials had destroyed his family business in China as retribution for practising Falun Gong, that the applicant was still practising Falun Gong and would continue to do so and that the applicant and his relatives and family had been persecuted in the past. All of those matters were in fact considered by the Tribunal but not accepted. At paragraph 8 the applicant submitted:
There has been a constructive failure by the Tribunal to exercise jurisdiction.
The particulars given were a repeat of the particulars for the two previous grounds. They do not, to my mind, set out any constructive failure to exercise jurisdiction. The respondent submits that on pages 97 through to 99 of the Court Book the Tribunal demonstrated its understanding of the matters that needed to be considered when carrying out its function. In my view that submission is correct.
In paragraph 9 the applicant claims to have been denied natural justice or procedural fairness. The applicant claimed the Tribunal was or appeared to be biased but based this on no more than an adverse finding by the Tribunal as to the essential matters of the applicant's claim. Where an applicant claims that a decision-maker shows bias, it must be remembered that this is a serious allegation implying an element of personal fault on behalf of the decision-maker. It must be supported by strong evidence. It is not sufficient to raise the issue of bias based on nothing more than an adverse decision. Similarly, there is no evidence of a denial of natural justice or procedural fairness.
The Tribunal wrote to the applicant inviting him to attend the hearing. It did so, on the basis that it was not able to come to a decision in his favour based on the material before it. The applicant attended the hearing and gave oral evidence. He was provided with the services of an accredited interpreter in Cantonese. The Tribunal member asked him a number of questions about his evidence. It appears that the applicant was given an opportunity to answer those questions and I cannot see any evidence that there was something essentially unfair in the way the proceedings were conducted. They appear to me to have been conducted in accordance with the requirements of the Migration Act and in accordance with what is understood by natural justice.
The applicant did not seek to put into evidence any transcript of the proceedings which would indicate that there was some irregularity in the hearing of the proceedings before the Tribunal. I have read through the decision of the Refugee Review Tribunal bearing in mind that the applicant is not legally represented. I am unable to identify any other jurisdictional error in the Tribunal's decision. In my view, there is no reviewable error. I am satisfied that the decision is a privative clause decision under the provisions of section 474 of the Migration Act.
The application is dismissed.
There is an application that the applicant should pay the respondent's costs in these proceedings. The applicant has been unsuccessful and in this jurisdiction costs usually follow the event. The applicant says that he is in some financial difficulty at present, that he is not in full-time employment and he is only working on a casual basis. He asks that there should be a reduction in the amount of costs. I am sympathetic to the applicant's claim of financial difficulty. That is not of itself a reason for not making an order for costs in favour of the successful party, nor is it a reason for reducing the amount of costs that would otherwise be proper. In my view, the lump sum of $4,000.00 which is sought is within the range envisaged by the Federal Magistrates Court Rules 2001. I am satisfied that the applicant should pay the respondent's costs. Having decided that, I am satisfied that the sum of $4,500.00 is an appropriate amount. In my view, the applicant's financial difficulties are matters that should properly be taken into account when considering the time allowed to pay those costs.
I propose to allow time to pay.
The applicant is to pay the respondent's costs fixed in the sum of $4,500.00 and I allow four (4) months to pay the costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 23 September 2005
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