SZFFI v Minister for Immigration
[2005] FMCA 1372
•6 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFFI v MINISTER FOR IMMIGRATION | [2005] FMCA 1372 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of the RRT affirming a decision of a delegate of the Minister not to grant the application a protection visa – applicant a citizen of China – where Applicant claimed to fear persecution because of her membership of the Falun Gong movement. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affair; Ex parte Durairajasingham (2000) 168 ALR 407
Yo Han Chung v University of Sydney (2002) FCA 186
| Applicant: | SZFFI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3612 of 2004 |
| Delivered on: | 6 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 6 September 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Alex |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $2,600.00. I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3612 of 2004
| SZFFI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the
Refugee Review Tribunal. The decision was made on 21 October 2004 after a hearing that took place on 20 October 2004. The
Refugee Review Tribunal handed down its decision on 11 November 2004. The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant filed her application at this Court on 13 December 2004 seeking a review of that decision. The Applicant seeks the following orders:
a)the decision of the Refugee Review Tribunal be set aside,
b)
an order that Luke Hardy not constitute the
Refugee Review Tribunal in any further hearing or consideration of the matter; and
c)costs.
The grounds stated in the application are: (1) I am a refugee according to the definition in the Article 1A(2) of the Convention and the Refugee's Protocol; (2) I fear the persecution from my own country and the fear is well founded:
I am a Falun Gong practitioner in China. Chinese government started to suppress Falun Gong in July 1999. I was sacked from my job and I was arrested by the Chinese government.
Those are the grounds that the Applicant gives.
Background to this case is that the Applicant is a citizen of the People's Republic of China. She arrived in Australia on a temporary business visa on 4 June 2004. On 13 July of that year she lodged an application for a protection visa. On 22 July a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused her application. On 18 August 2004 the Applicant sought a review of that decision by the Refugee Review Tribunal.
The Tribunal invited the Applicant to attend a hearing on
21 October 2004. Whilst the Applicant had obtained assistance from a migration advisor, that person did not attend the hearing. The Applicant did have the assistance of an interpreter from Mandarin into English.
The Applicant told the Tribunal that she feared persecution by reason of her membership of the Falun Gong movement which is banned in China. She had given evidence that she was employed as a technician in a factory and that she had been a practitioner of Falun Gong since 1992. Eventually she was arrested by police and taken into custody. After she had been in police custody for over 10 hours, she was sent to a correctional facility without trial. She remained in that correctional facility for three months. She was released on condition that she formally renounced the practice of Falun Gong. She said that she agreed to this condition. She also said that after she was released she was sacked from her employment at the factory and did not receive any redundancy payment. She then found it difficult to obtain employment in China.
The Applicant arrived in Australia in 2004 and has been staying with friends. She told the Court that she spoke a little bit of English and was assisted at the hearing by an interpreter. She was not legally represented. She said that she had had some employment working as a nanny for Chinese speaking families.
The application that was filed on 13 December 2004 seeks orders that the Tribunal's decision be set aside and that Mr Hardy should not constitute the Tribunal any further in the matter. The application for costs is redundant in that she is not legally represented, nor has she been.
Whilst the application does not specifically seek an order in the nature of a writ of mandamus directing the Refugee Review Tribunal to
re-hear and re-determine her application according to law, I am satisfied that that is something which the Applicant would require. The application itself states that it is made under s.39B of the Judiciary Act.
The grounds of the application do not contain any specific recital of any jurisdictional error. The first ground merely asserts that the Applicant is a refugee according to the definition in the Refugees Convention and the Refugees Protocol. That in itself does not identify any jurisdictional error and is more in the line of being a factual assertion.
The second ground which the Applicant claims a well founded fear of persecution because of her practice of Falun Gong, and her arrest and subsequent loss of employment, is again a factual assertion rather than a claim of any error of law.
The Applicant in her oral submission to the Court today reasserted her claim that she was a refugee and that what she had told the Tribunal was correct.
It is now trite law that a Court conducting judicial review does not reconsider the merits of an Applicant's claim. In other words, the Court does not re-hear the matter based on the facts of the case and substitute its own view of the facts for that given by the decision maker, in this case the Refugee Review Tribunal. This has been set out in a number of decisions, including Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The Applicant seeks an order that Mr Hardy should not constitute the Refugee Review Tribunal in any further hearing of the matter. I asked her why she sought that particular order. She said that the Tribunal member did not carefully assess her case. She told the Court that she had told the Tribunal she started practising Falun Gong in 1992. She said she was not taken into detention until the year 2000. Her criticism of the Tribunal Member is that in his decision he said that what she said was false and that therefore he did not assess her case properly.
In my view, this is no more than a reassertion of the facts of the case upon which the Applicant relies. It is not a ground for review on the basis of any bias or denial of natural justice exhibited by the Tribunal member. It is not sufficient to say that a person has been treated unfairly purely because the decision maker has decided a factual question in a way that is contrary to the case that the Applicant asserts. It is the decision maker who has the task of making factual findings and not the Court conducting a judicial review.
It appears that the decision of the Refugee Review Tribunal turned on the question of the credibility of the Applicant. In her written submissions Ms Alex, for the Respondent Minister, made the following submission:
The Refugee Review Tribunal's finding of adverse credibility where such findings are reasonably open on the evidence before it is properly the function of the decision maker and generally not susceptible to judicial review by the Court. Further, according to McHugh J, in Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407 at paragraph 67 detailed reasons are not required.
In my view, with respect, this is a correct statement of the law.
This to my mind, is important because it is clear from the "Findings and Reasons" on page 112 of the Court Book that the Applicant's credibility was the major reason for the Tribunal affirming a decision not to grant a protection visa to the Applicant.
The "Findings and Reasons" refer to three particular pieces of information upon which the decision maker rely. First:
The Tribunal relies on the claimed and demonstrated legality of the Applicant's departure from the PRC in concluding that she was not of interest to the authorities for any relevant reason at the time she was allowed to leave that country, namely the People's Republic of China.
In my view, the facts of a person’s departure from their home country on a legitimate passport do not provide a strong factual foundation for a finding that a person is not a refugee. I certainly do not support the finding that the Applicant is a person whose credibility on relevant issues is doubtful.
The next ground is that the Tribunal has not confidence that the Applicant had ever been involved in the practice of Falun Gong. The Tribunal stated:
The Tribunal is confident in concluding that the Applicant's recollection of details about Falun Gong teaching and practice is far from what would reasonably expect to be the knowledge of a true Falun Gong practitioner. The Tribunal was particularly struck by the Applicant's poor grasp of the exercises and by her ultimately sceptical view of the "wheel".
It appears to me that the Applicant's apparent scanty knowledge of the basic Falun Gong exercises was a major factor in the Tribunal's decision against her.
The third ground given is this:
In addition the Applicant provided widely divergent information at different stages of her application as to when she was arrested over Falun Gong activities, and as to what she did after coming to Australia.
In my view the basis for the Tribunal's finding that the Applicant provided widely divergent information about when she was arrested over Falun Gong activities sits on an extremely shaky foundation.
The Applicant's personal statement is set out at page 29 of the
Court Book, it does not say that the Applicant was arrested and taken into custody in 1992, notwithstanding that the Tribunal member appeared to believe this, as set out on page 109 of the Court Book.
What the Applicant said in the second paragraph of her personal statement is this:
When people in China practiced Falun Gong in 1992 I also used my spare time to practice Falun Gong. Falun Gong is very good. When I was practicing Falun Gong I was arrested by the police and was taken into custody for more than 10 hours. I was forbidden to have any water, food or even go to the toilet.
The Applicant goes on to say in her statement:
After that they sent me to the Ma Shan Correction Centre without trial. I was jailed and brainwashed for three months. I was released after I was forced to admit that Falun Gong was not good, which was against my will.
After I was released from the correction centre I was fired by the factory without any redundancy payment. I didn't have any income.
In my view this statement does not support the view that the Applicant was arrested in 1992 or sacked in 1993. It was the Applicant's case that she started practicing Falun Gong in 1992 and continued over a period of time until the year 2000. It appears to me, that the Applicant merely explained to the Tribunal member that she was not detained until 1999 when there was a crackdown on Falun Gong and that she subsequently lost her job after her release, in either late 1999 or early 2000.
The Tribunal member appears to have misunderstood the Applicant's statement. The Tribunal member has then applied this misunderstanding to find an inconsistency in the Applicant's account of her circumstances which does not to my mind, appear to be there.
At page 109 of the Court Book, the Tribunal member says:
The Tribunal put it to the Applicant that it seemed odd for her to have been practicing Falun Gong in Liaoning back in its foundation year of 1992, given that in that year it was only getting started.
It is difficult to see why it would be odd for a person to have started practicing Falun Gong in the year that Falun Gong started. Someone had to be practicing Falun Gong in 1992, otherwise it would not have got started. The logic of the Tribunal members reasoning is difficult to follow in that respect.
The point is however, as submitted by Ms Alex on behalf of the Respondent, that the major reason for the Tribunal's rejection of the applicant's claim based on her credibility if the fact that the Applicant appeared to have very little knowledge of the practice of Falun Gong. When asked to perform the exercises she was only able to perform one of the five, and according to the Tribunal member she made a mistake as to which exercise it was.
The Tribunal member appears to have asked the Applicant a number of questions about Falun Gong and been dissatisfied with the Applicant's answers as to the extent of her knowledge. It was based on that information that the Tribunal member formed an adverse view of the Applicant's credibility.
In my view, the evidence that the Applicant appeared to know very little about the practice of Falun Gong provides a very strong basis for the Tribunal's finding that the Applicant did not appear to be a Falun Gong practitioner.
I am mindful of the fact, as has been set out in Yo Han Chung v University of Sydney (2002) FCA 186 at paragraphs 31 to 34, that where an applicant is unrepresented the Court is required, not only to consider the arguments put by the applicant, but also independently consider whether an arguable case based on the material could be made out.
I have considered the material contained in the decision of the Refugee Review Tribunal. I am unable to see a jurisdictional error that would remove from this decision the protection of s.474 of the Migration Act.
It is clear as I said, that the major reason for the Tribunal's finding that the Applicant is not credible in her claim to be a Falun Gong practitioner, was the paucity of knowledge displayed by the Applicant at the Tribunal hearing.
This evidence was sufficient to enable the Tribunal member to form the adverse view of the Applicant's credibility that he did. Accordingly, there is no reviewable error. The decision of the Refugee Review Tribunal is a "privative clause decision", as defined in s.474 of the Migration Act.
Accordingly, my obligation is to dismiss the application.
There is an application by the respondent solicitor that the Applicant should pay the Respondent's party and party costs. The Applicant has been unsuccessful in her case and I believe an order for costs in favour of the Respondent is appropriate. The amount that is sought is a lump sum of $2,600.00. I note that the Respondent has been represented by a solicitor today and it has not been considered necessary to brief counsel. That decision was clearly correct as the solicitor concerned ably represented her client. It is the practice of the Federal Magistrates Court, wherever possible, to make an order for costs in a fixed sum rather than making an order that costs be assessed or taxed. In my view the amount of $2,600.00 is well within the amount prescribed by the scale under the Federal Magistrates Court Rules. It is an appropriate figure in my opinion.
The application will be removed from the list of cases awaiting finalisation.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 20 September 2005
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