SZFFP and Minister For Immigration

[2005] FMCA 1397

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFFP & MINISTER FOR IMMIGRATION [2005] FMCA 1397

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 China – where applicant claims a well-founded fear of persecution by reason of his political opinion.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A; 475A

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; 136 ALR 481
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [67]
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231

Applicant: SZFFP

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3628 of 2004

Judgment of: Scarlett FM

Hearing date: 7 September 2005

Date of Last Submission: 7 September 2005

Delivered at: Sydney

Delivered on: 7 September 2005

REPRESENTATION

The Applicant: Appeared in person

Solicitors for the Respondent: Ms Burnett
Clayton Utz

ORDERS

1. The application is dismissed.

2. 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 3628 of 2004

SZFFP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Tribunal.  The decision was made on 28 October 2004 after a hearing that took place on 12 October 2004.  There has been an earlier hearing before another member of the Refugee Review Tribunal, who had retired.  The Refugee Review Tribunal handed down its decision on 18 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. 

2. On 14 December 2004 the applicant filed an application for a review of the Tribunal's decision.  In that application and in his amended application filed on 28 February 2005 the applicant seeks these orders:

   (1)a declaration that the decision was invalid and contrary to law.

   (2)an order that the decision and each of them, referred to above, be quashed or set aside.

   (3)an order that the matter be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with the law.

   (4)an order that the respondent pay the costs of this application.

   (5)such further or other order as the Court sees fit.

3. The amended application states that it is made under section 39B of the Judiciary Act 1903 (Cth) with reference to section 475A of the Migration Act 1958 (Cth). As the amended application seeks an order in the nature of a writ of mandamus, even though not in as many words, it seems clear that the application is in fact one which the Court can hear under section 39B of the Judiciary Act.

4. The background to this matter is that the applicant is a citizen of The People's Republic of China.  He arrived in Australia on 9 January 2004.  On 20 January 2004 he lodged an application for a protection visa. 

   
   

   On 17 March 2004 a delegate of the Minister refused his application for a protection visa.  The applicant then applied for a review of the delegate's decision on 13 April 2004.  The applicant accompanied his application for review with a detailed letter signed on 8 April 2004. 

   
   

   In that letter the applicant reiterated his claim that he is a refugee. 

   
   

   He stated his belief that the delegate had not considered all of his claims fairly and carefully. 

5. He referred to information provided by the delegate about the fact that the Chinese Communist Party had persecuted millions of Chinese since gaining power in 1949.  He noted that the Chinese Government places restrictions on freedom of speech, freedom of press, freedom of assembly, freedom of association, and other matters, and that the regime represses Chinese citizens for political and religious reasons.  He stated that he had given detailed claims of his application relating to his fear of persecution on his return to China for political reasons.

6. He said that he had been involved with an organisation called The Chinese Freedom Association.  He had travelled out of China to Malaysia.  At that stage he said that his role in The Chinese Freedom Association had not been discovered by Chinese authorities.  Eventually, but after that date, his role in the organisation came to light and his wife was investigated and his home was searched.  He said that he would be unable to relocate within China to avoid persecution. 

   
   

   He claimed that he feared that he would be arrested and imprisoned by the Chinese Government owing to his political opinions. 

7. The first hearing took place on Wednesday 26 May 2004.  The applicant attended that hearing and gave evidence.  Unfortunately the member who had heard his case retired and the Refugee Review Tribunal quite properly listed the matter for a further hearing before another member of the Tribunal on 12 October 2004.  The applicant attended that hearing and gave evidence.  The Tribunal handed down its decision on 18 November 2004.  In that decision the Tribunal in its findings and reasons at page 89 of the court book said that there were a number of reasons which led the Tribunal to reject the applicant's claim and conclude that he was not a reliable witness.  At page 90 of the court book the Tribunal member said:

   The applicant's claims are entirely dependent upon an acceptance of him as a credible witness.  The applicant was not generally credible and the Tribunal does not regard the inconsistencies and the other matters dealt with above as explicable in terms of any difficulty he faces as an asylum seeker.  The Tribunal does not accept the applicant as credible and consequentially rejects all of his claims.

8. The Tribunal then went on to particularise the reasons why it was not satisfied that the applicant was a credible witness.  In summary they are as follows:

9. The Tribunal found it implausible that the applicant would register The China Freedom Association, or attempt to do so, on 4 May 1999, ten years after the events in Tiananmen Square.  A person called Wang Youcai had been sent to prison after an unsuccessful attempt to register The China Democracy Party, and that the lengthy gaol sentences given to Wang Youcai and two other people had been widely publicised in China.

10. The Tribunal was sceptical of the applicant's reasons for returning voluntarily to China on two occasions.  After he had been arrested, detained and tortured and then held in custody for 12 months his previous travels out of China since that time had included visits to Australia and New Zealand.

11. The Tribunal did not accept the applicant's accounts of his visits to Thailand, Malaysia and Singapore, especially as he had been unemployed for some time but was able to obtain finance to visit these countries.

12. The Tribunal said that the applicant had given contradictory evidence about two of his colleagues, Yu Yin Quiang and Wang Jie.

13. The Tribunal noted that the applicant had obtained a passport and had travelled in and out of China on several occasions without hindrance by the authorities, which indicated that he was not wanted by the authorities as he claimed.

14. The Tribunal was not satisfied that the applicant was a co-founder of The China Freedom Association because his evidence about his role in that organisation was very vague and he lacked knowledge about basic facts relating to the organisation.

15. Those are the reasons in the summary for the Tribunal's wholesale rejection of the applicant's evidence. In his amended application the applicant claimed that the Tribunal had not given information to him that the Tribunal would be relying upon for affirming the decision, thereby failing to comply with section 424A of the Migration Act.

    
    

    The applicant referred to the provisions of section 441A which sets out the methods by which the Refugee Review Tribunal may give documents to the applicant.

16. The relevant information that the applicant claimed had not been given to him included evidence about the activities of Wang Youcai who had tried to register The China Democracy Party.  The applicant told the Court in his oral submission that he had not known of the existence of Wang Youcai before the Tribunal hearing.  He did raise the fact that the Tribunal had discussed this issue with him briefly at the hearing. 

    
    

    He said that there was no parallel between Wang Youcai's experiences and his and information about Wang Youcai was not relevant to his case. In any event Ms Burnett for the respondent Minister told the Court that the submission would not be pressed, that information about Wang Youcai came under the protection of section 424A, and was not an integral part of the Tribunal's decision.

17. The applicant took issue with the Tribunal's finding that he had been able to obtain a passport and travel in and out of China, or into and out of China without hindrance, as evidence that the Chinese authorities had no adverse interest in him.  He said that he had explained to the Tribunal that corruption was rife in China and that anyone who had the money and was prepared to pay a bribe could obtain a passport without difficulty.  The applicant's submission also claimed that even though some of this information had been referred to by the Tribunal at the hearing it was only in the form of a few words and the Tribunal did not clearly inform him that the information would be used for affirming the decision of the delegate of the Minister.

18. He submitted that it was impossible for him to have a fair chance to comment on that information.  The applicant then went on to claim that the Tribunal's decision contained contradictions.  That may be so, but such a claim is no more than cavally and a factual finding made by the Tribunal and a court conducting judicial review does not enter into the field of reviewing the factual findings made by a decision-maker. 

    
    

    I refer to Minister for Immigration & Ethnic Affairs and Wu Shan Liang (1996) 185 CLR 259; 136 ALR 481.

19. One of the matters contained in the orders sought by the applicant was an order that his application be remitted to the Refugee Review Tribunal to be reheard by another Tribunal member.  I asked the applicant why he sought that another Tribunal member should hear the application and he replied that the reasons that the Tribunal refused his application were not sufficient.  He said that at one point the Tribunal had said that his claim was not clear, but in reality his claim was very clear.  As a result he was suspicious as to whether the Tribunal member had read his material clearly.

20. The solicitor for the respondent provided a written outline of submissions.  She submitted at paragraph 10 that the integral and essential findings for affirming the decision under review were the Tribunal's findings that, (a) the Tribunal was not satisfied that the applicant was a co-founder of The China Freedom Association, set up The China Freedom Association, or was a pro-democracy activist, and (b) the authority was not viewed as anti-government by the Chinese authorities and had not come to their adverse attention, as witness his ability to travel into and out of China without hindrance.  As I said, the applicant said that he had provided an explanation to the Tribunal about his ability to obtain a passport by means of bribe.

21. The respondent submits that provided that the Tribunal's findings were reasonably open to it on the evidence there is no jurisdictional error in the Tribunal making a wrong finding of fact and the decision to reject an applicant's evidence is a decision of fact that cannot be attacked in judicial review proceedings, see NADR vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9], and also SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231.

22. I have considered the material before me.  It is clear that the primary reason for the Tribunal finding against the applicant was the Tribunal's wholesale rejection of the applicant's credibility as a witness.  It is well known that a finding as to whether the prosecutor or applicant should be believed in his claim, which is a finding on credibility, is the function of the primary decision-maker.  As the High Court of Australia has held in ReMinister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [67]:

    If the primary decision-maker has stated that he or she does not believe a particular witness no detailed reasons need to be given as to why that particular witness was not believed.

23. In this case the Tribunal did give reasons as to why the applicant's credibility was not accepted. In my view those reasons were open to the Tribunal on the evidence. I note that the applicant is not represented by a lawyer. He did, however, have the benefit of legal advice through the pilot scheme operated by the Federal Court in respect of refugee matters. His amended application was prepared with the assistance of a lawyer from whom he obtained legal advice in accordance with the terms of that scheme. Nevertheless I have conducted my own examination of the Tribunal's decision. I have not been able to discern any other error of jurisdiction. In my view there is no reviewable error. Accordingly, the decision of the Refugee Review Tribunal is a privative clause decision within the meaning of section 474 of the Migration Act 1958 (Cth). The application will be dismissed.

24. The applicant has been wholly unsuccessful in his case. In my view this is a ground for making an order for costs in favour of the respondent. The amount of $4500.00 which is sought is within the scale of lump sum costs referred to in the Federal Magistrates Court Rules. The applicant is in employment. He told the Court he was engaged in renovation work. I will allow some time to pay.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date: 23 September 2005