SZFCI v Minister for Immigration - [2005] FMCA 1280

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFCI v MINISTER FOR IMMIGRATION

[2005] FMCA 1280

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 to grant the applicant a protection visa – applicant a citizen of China – claim that applicant has a well-founded fear of persecution because of his political opinions and belief in Falun Gong.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A

Applicant:

SZFCI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3440 of 2004

Judgment of:

Scarlett FM

Hearing date:

30 August 2005

Date of Last Submission:

30 August 2005

Delivered at:

Sydney

Delivered on:

30 August 2005

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Ms Morgan

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $6,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3440 of 2004

SZFCI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal that was made on 22 October 2004 and was handed down on 11 November 2004. The decision of the Tribunal was to affirm a decision by a 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 18 April 2004. On 23 April 2004 he lodged an application for a protection visa. In that application the applicant said that he had a well-founded fear of persecution if he were to return to China. He said that his family members have experienced physical and mental torment. He said that he lost his basic human rights because of his political opinions and his belief in Falun Gong. He said that he feared that he would be persecuted because he had organised meetings with friends to discuss their political opinions and because of his involvement with Falun Gong. He said that he lost his job because of his political opinions and he continued to live in poverty because of his involvement with Falun Gong.
On 23 April 2004 a delegate of the minister refused his application for a protection visa. On 26 May 2004 the applicant lodged an application for review of that decision. In his application for review he referred to his involvement with Falun Gong and his different political opinions from the Chinese Communist Party. For those reasons he said he would be persecuted on his return to China.
The Tribunal wrote to the applicant on 3 June 2004. They invited him to attend a hearing on 30 June 2004. Unfortunately, that hearing had to be postponed to another day. The hearing took place on Wednesday, 25 August 2004. The applicant attended that hearing where he gave evidence with the assistance of an interpreter. He told the Tribunal that he had travelled to Australia on a group visa organised by an agent. He said that he had been living at an address in Shanghai and that was still his current residential address in China. The Tribunal asked him how he had obtained his passport and he said that he provided his identity card and he paid a fee and then the passport was issued to him as a matter of course.
The applicant told the Tribunal that he used to take his sister in her wheelchair to the park to practice Falun Gong. He told the Tribunal that he had no involvement with Falun Gong; he was not a practitioner or a believer. The Tribunal member asked him again what he feared in China and he said that in China people are not provided with basic living necessities. He said the payment from employment was not enough to support a family and he had lost his job because he used to take his sister in her wheelchair to a park so that she could practice Falun Gong. The applicant told the Tribunal that he would not be able to find employment if he returned to China. He said his residence had been demolished but that he had been paid some compensation.
He said that he would not be able to support his son because he could not find a job. The factory where he had worked had closed down and all of the workers were laid off. The applicant said that he had suffered poverty and had not been given things that he was entitled to because of his political opinions. He said that he did not have the right to vote but could not explain why that was. He denied that he had been involved with any political party or organisation in China. The applicant reiterated to the Tribunal that he would not be able to find a job if he returned.
The Tribunal was not satisfied that the applicant's evidence coincided with the material in his protection visa application. The Tribunal did not accept that he had lost his job as a bus driver because he assisted his sister to go to Falun Gong practice. The Tribunal found that his political opinion was not a reason for his dismissal from his employment because at the hearing he had said that his dismissal was solely because of his involvement with Falun Gong. The Tribunal said at page 63 of the Court Book:
On the basis of the evidence as a whole, I have formed the view that the applicant is not a witness of truth.
The Tribunal went on to say why the Tribunal member had come to that decision about the applicant's credibility.
The applicant filed an amended application on 4 March 2005. He asks that the decision made by the Refugee Review Tribunal should be set aside and that his application should be sent back to the Tribunal for reconsideration. The grounds for his application appear to be these: first, he complains that the Tribunal did not accept his evidence. He said that the discrepancy between his evidence to the tribunal and the written material in his application for a protection visa was due to an error in translation. Further, the applicant complained that the Tribunal member was biased against him when considering his application. Finally, the applicant complained that the Tribunal did not refer to sufficient independent information for the consideration of his application and did not give him a chance to change his mistakes with his initial claims.
He told the Court that he wanted to get a new solicitor and that he wanted to reorganise his materials so that he could make another application to the Refugee Review Tribunal. He said that he had brought documents with him to assist in his case such a death certificate of his sister. He took that material to the Tribunal but it was all in Chinese and there was no English translation.
I have read the written submissions prepared by counsel for the respondent minister. She points out, quite correctly, that the ground that the applicant relies on where he says that the Tribunal refused to accept any of his explanations at the hearing is not a ground of review at all, but is a challenge to the Tribunal's finding about the credibility of the applicant's evidence. She submits that the Tribunal made a finding that it did not accept the veracity of his claim and that such a finding was open to the Tribunal.
As far as the allegation of bias is concerned, Ms Morgan submitted that it was a mere assertion and there was no evidence to corroborate it.
Turning to the allegation that the Tribunal did not refer to sufficient country information, counsel pointed out that the Tribunal did indeed consider country information, but it was clear from the decision that the basis for the Tribunal's decision was the unfavourable opinion formed about the applicant's credibility.
It is trite law that a Court conducting judicial review does not undertake a review of the merits of the decision. Findings of fact are solely the province of the administrative decision-maker. Thus, the applicant's claim that the Tribunal did not accept his explanation is no more than a challenge to a factual finding and it is no ground for relief.
As far as the allegation of bias is concerned, I am mindful that bias is a serious allegation implying personal fault on the part of the decision‑maker. There is no evidence that the Tribunal member was biased and at the hearing the applicant said that his amended application was prepared for him by a friend. I am satisfied that he effectively abandoned the claim of bias at the hearing before me.
As to the claim that the Tribunal did not refer to sufficient country information, I agree that there is evidence that the Tribunal did refer to country information and it is also clear that it is up to the applicant to provide material to support his or her claim. I have read through the Tribunal decision and I cannot discern any other jurisdictional error. In my view, there is no reviewable error. There is no jurisdictional error shown in proceedings and I find that the decision is a privative clause decision under the provision of s 474 of the Migration Act.
As I said, there is no jurisdictional error. The application will be dismissed.
There is an application for costs. The applicant has been wholly unsuccessful in his claim. This is a matter where it is appropriate to grant a costs order in favour of the respondent. I note that a lump sum of $6200 is sought. In my view, that is within the scale provided by the Federal Magistrates Court Rules. I propose to make that order.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 5 September 2005