SZCLE v Minister for Immigration
[2005] FMCA 1551
•25 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCLE v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1551 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not grant the applicant a protection visa – applicant alleged to be a citizen of China – claim of fear of persecution because of being a Falun Gong practitioner and a former member of the People's Liberation Army – credibility of applicant's account in issue – where RRT not satisfied as to the applicant's true identity. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.475A |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 24 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 |
| Applicant: | SZCLE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 68 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 October 2005 |
| Date of Last Submission: | 10 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application is granted.
That an order in the nature of certiorari issue bringing into this Court to be quashed the decision of the Refugee Review Tribunal made on
13th November 2003 and handed down on 9th December 2003.
That an order in the nature of mandamus issue remitting the Applicant’s application for review of a decision of a delegate of the Minister to the Refugee Review Tribunal to be determined according to law.
That there be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 68 of 2004
| SZCLE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 13th November 2003 after a hearing that took place on 20th October 2003. The applicant attended the hearing and gave oral evidence. He also brought a number of documents with him, including copies of two pages from a passport, a driver’s licence (NSW) and a divorce certificate.
The Refugee Review Tribunal handed down its decision on
9th December 2003, affirming the decision of the delegate of the Minister not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of the People’s Republic of china who arrived in Australia on 13th August 2002. He applied for a protection (class XA) visa on 27th August 2002, claiming a well-founded fear of persecution because of his membership of the Falun Gong group.
A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused that application on 24th October 2002, so the applicant sought a review of that decision by the Refugee Review Tribunal by means of an application lodged on 22nd November 2002.
The dcision of the Refugee Review Tribunal
At the hearing, the Applicant claimed that he was a Falun Gong practitioner who was an army officer. The central assertion to his claim is that by being an army officer who is also a Falun Gong practitioner he is likely to face more serious consequences than a civilian Falun Gong practitioner.
The Tribunal had serious concerns about the Applicant’s credibility.
In particular, the Tribunal was not satisfied about the Applicant’s true identity and, accordingly, was not in a position to make a finding with certainty about his citizenship[1]. The Tribunal went on, however, to assess the claim on the basis that the Applicant is a citizen of the People’s Republic of China.
[1] See Court Book page 127
The Tribunal was sceptical of the Applicant’s account that his passport had been taken away from him by the tour guide when he came to Australia and that he had changed his name around April or May 2002. He said that he had obtained another passport through a friend in China who had posted it out to him. He produced a divorce certificate and a photograph of himself in Chinese Army uniform, but said that his military ID had been taken from him by the authorities. The Applicant later produced the second passport which he said he had obtained in 2003. The Tribunal noted that the passport that the applicant produced was issued in 2000 and found that the Applicant was the person who is named in that passport. The Tribunal did not accept that the Applicant was ever a member of the People’s Liberation Army and gave the photograph of the Applicant dressed in army no weight “as it does not overcome other problems with the applicant’s evidence”.[2]
[2] See at page 128 of the Court Book.
Having rejected the Applicant’s claim that he was an army officer, the Tribunal turned to consider his claim that he was a Falun Gong practitioner. The Tribunal said this:
“During the hearing, the applicant demonstrated the five Falun Gong exercises. He knew the slogan “Zhen Shan Ren” meaning “Truthfulness-benevolence-forbearance” and the title of the main text ‘Zhuan Falun’. The Tribunal has formed the view that the applicant has knowledge and practical skills in Falun Gong, however, given the fact that the Tribunal has serious concerns about the applicant’s credibility, the Tribunal is satisfied that the knowledge and skills of the applicant concerning Falun Gong were acquired for the purpose of supporting his refugee claim. Therefore, the Tribunal finds that the applicant is not a genuine Falun Gong practitioner. The Tribunal has given regard to the applicant’s oral evidence that in Sydney he attends Falun Gong sessions, however, on the basis of the available information and in particular the lack of corroborative evidence, the Tribunal is not satisfied that the applicant attends those sessions.”[3]
[3] Court Book at pages 128 and 129
The Tribunal was not satisfied that the Applicant is 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 a protection visa.
The applicant’s application for review
In his application filed on 12th January 2004, the Applicant seeks:
a)A declaration that the RRT’s decision was invalid and contrary to law;
b)An order in the nature of certiorari;
c)An order in the nature of mandamus;
d)Costs;
e)Such further order as the Court sees fit.
The application gives two grounds:
a)There was an error of law in the Tribunal’s decision constituting a jurisdictional error; and
b)There was (a?) procedural error in the Tribunal’s decision constituting an absence of natural justice.
The applications contains the following particulars which I have paraphrased:
a)The Tribunal failed to consider the Applicant’s claims;
b)The Tribunal failed to investigate and verify the Applicant’s claims;
c)The Tribunal failed to consider certain facts;
d)The Tribunal failed to consider the Applicant’s claims before and after the hearing; and
e)The Tribunal failed to seek any independent information about the fact that a Falun Gong practitioner with a military background would be severely persecuted by the Chinese Government.
The respondent’s submissions
Counsel for the First Respondent Minister, Mr Johnson, submitted in writing that there was no jurisdictional error in the Tribunal’s reference to the absence of information in the primary application that the Applicant was a member of the People’s Liberation Army.
He submitted that the Tribunal, amongst its reasons for not accepting that the Applicant was ever a member of the PLA, referred to the fact that the claim was only made at the review stage rather than at the primary level. The Tribunal found that this rendered “further support that this claim has been fabricated”[4]. He submitted that the Tribunal’s use of the initial application in that way did not involve any breach of s. 424A of the Migration Act, understood in the light of SAAP v MIMIA (2005) 215 ALR 162 and assuming the correctness of MIMA v Al Shamry (2001) 110 FCR 24.
[4] See page 128 of the Court Book
The Tribunal had written to the Applicant under s.424A making observations about the Applicant’s passport produced on
21st October 2003 and issued on 25th September 2000 noted the Applicant’s occupation as “Manager” and warning that the information was important because the Tribunal could draw adverse credibility inferences, including the fact that the Applicant had been untruthful about his true identity. Mr Johnson observed that the fact that the Applicant produced the passport to the Tribunal on 21st October meant that the information in the passport was produced to the Tribunal by the applicant in the review application.
It was also submitted that the Applicant gave to the Tribunal in a statutory declaration, declared on 26th May 2003 and submitted to the tribunal in the review application, the information that in his primary application for the protection visa he had neither exposed his membership of the People’s Liberation Army or the earlier name that he claimed. This information was accordingly information within
s.424A (3) (b) as interpreted by MIMA v Al Shamry (supra).
Mr Johnson also submitted that the Tribunal’s decision turned upon findings of fact which are within the domain of the Tribunal.
He submitted that no other jurisdictional error is evident.
In reply to the Application, Mr Johnson submitted that there was some evidence upon which the tribunal could conclude that the Applicant had an occupation other than being a member of the PLA (i.e. the passport which described him as a Manager) and the Applicant’s acknowledged failure to mention his membership of the PLA in his primary visa application.
It was, Mr Johnson submitted, entirely a matter for the Tribunal whether or not it accepted the evidence given by the Applicant. It was for the Applicant to put forward whatever evidence he wished to have taken into account and it was for the Tribunal to decide whether the claim was made out. In support of his arguments he cited Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ, and Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ.
Conclusions
In my view, counsel for the First Respondent is correct in submitting that there was no breach of s.424A of the Migration Act and I adopt the reasons that I have set out in the latter part of paragraph 12 and paragraphs 13 and 14 above.
I am also satisfied that it was entirely a matter for the Tribunal whether or not it accepted the Applicant’s evidence and it was for the Applicant to put forward whatever evidence he wished to have taken into account and it was entirely a matter for the Tribunal to decide whether the Applicant had made out his claim. The decisions of Re Ruddock; Ex parte Applicant S154/2002 (supra) and Abebe v Commonwealth (supra) are authority for those propositions.
The particulars set out in the application relating to the Tribunal’s alleged failure to consider the applicant’s specific claims amount in this case to no more than an attempt to seek a merits review of the Tribunal’s factual findings. The Applicant’s claims that the Tribunal failed to investigate certain matters is misconceived and shows a misunderstanding of the role of the Tribunal. The Tribunal is under no obligation to conduct its own investigations. It is for the Applicant to provide the necessary evidence.
In my view, there is only one area where the tribunal appears to have fallen into jurisdictional error. The Applicant’s credibility has been severely shaken by the discrepancies in his account, including the fact of the passports in different names. In addition, the fact that the Applicant did not raise the issue of his service in the Army until the review stage rather than in his primary application entitles the Tribunal to form serious doubts about his overall credibility.
Even taking those matters into account, however, the evidence does not entitle the Tribunal to make the assertion on page 128 of the Court Book that “the Tribunal does not accept that the applicant was ever a member of the People’s Liberation Army”. The Tribunal was satisfied “that the applicant is the person who is named in the passport in his possession, that is the passport which was issued on
25th September 2000”. In my view, this is a factual finding that the Tribunal was entitled to make. The Applicant had produced the passport to the Tribunal as part of the review process, so he can hardly be heard to complain if the Tribunal then finds that he is the person named in that passport. That is a finding that is open to the Tribunal on the evidence.
That passport describes the Applicant’s occupation as “Manager”.
It was therefore open to the Tribunal to find that the Applicant was a manager, rather than an army officer, on 25th September 2000 and, applying the presumption of continuance, continued in that occupation after that date. What the passport does not support is the finding that the Applicant was never a member of the People’s Liberation Army. Even allowing for the serious doubts about the Applicant’s credibility, all that the passport can show is that Applicant was not a member of the Army from and after 25th September 2000.
The evidence does not allow the Tribunal to make this assertion:
“The photograph produced by the applicant showing him dressed in army uniform can be evidence of that assertion but the Tribunal does not give it any weight as it does not overcome other problems with the applicant’s evidence.”[5]
[5] Court Book page 128
The fact is that the photograph of the Applicant in army uniform is evidence that the Applicant was at one stage in the past a member of the People’s Liberation Army. The Tribunal was entitled to prefer the evidence of the passport, which allows the Tribunal to make a finding that the Applicant was not a member of the PLA on
25th September 2000 or at any time since then, but the passport cannot contradict the assertion that the Applicant was at one stage in the past a member of the PLA. The Tribunal cannot just disregard evidence because it does not fit the Tribunal’s hypothesis.
In my view, this is a similar error to that referred to by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50. As their Honours said at [13]:
The situation that arose in this case might preferably be described as a failure to take account of relevant material, rather than ‘no evidence’. However, the label does not matter. On any view of the matter, the Tribunal fell into jurisdictional error.
The issue is an important one, because it is fundamental to the Applicant’s claim that as a Falun Gong practitioner he is more likely to be subject to persecution because of his membership of the PLA.
The Applicant’s past army service (and it is almost certainly past at this stage) is an integral part of his claim. Disregarding the evidence of this fact because it does not otherwise fit a hypothesis constitutes jurisdictional error.
It follows that the Applicant is entitled to a grant of prerogative relief.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 25 October 2005
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