SZFHH v Minister for Immigration

Case •

[2005] FMCA 1894

•

15 December 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFHH v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1894
MIGRATION – visa – Refugee Review Tribunal – protection (class XA) visa -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 of well-founded fear of persecution because of adherence to Falun Gong – credibility a matter for the decision maker.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.474

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510

Applicant: SZFHH
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 3701 of 2004
Delivered on: 15 December 2005
Delivered at: Sydney
Hearing date: 15 December 2005
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms McNamara
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. Leave granted to join Refugee Review Tribunal as a party to the proceedings.

  2. The Refugee Review Tribunal is joined as Second Respondent to the Application.

  3. I DIRECT the Second Respondent to file a Notice of Appearance within 7 days.

  4. The Application is dismissed.

  5. The Applicant is to pay the First Respondent’s costs in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3701 of 2004

SZFHH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal that was made on 27th October 2004. The Tribunal handed down its decision on 18th November 2004. The decision of the Tribunal was to affirm the decision of a delegate of the Minister not to grant a protection (class XA) visa to the Applicant. 

  2. The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 4th July 2004 and five days later applied for a protection (class XA) visa. On 14th July 2004 a delegate of the Minister refused that application and on 9th August the Applicant applied for review of that decision with the Refugee Review Tribunal.

  3. The Tribunal wrote to the Applicant inviting him to attend a hearing where he could give oral evidence and make submissions to the Tribunal. The Applicant in fact attended the hearing on Wednesday 27th October where he gave evidence. He told the Tribunal that he had been born in Tianjin, China and in fact his family are still there. He said he had been a Falun Gong practitioner since early 1996 and after the Chinese government banned Falun Gong a friend of his and fellow practitioner was arrested, imprisoned for three years and subjected to torture. The Applicant then said that he was obliged to practice Falun Gong in secret.

  4. Things apparently came to a head in December 2003 when the Applicant travelled to Germany for work-related business. On his return to China he was found to have Falun Gong literature in his bag that he had obtained in Germany. He said he was detained, beaten by police, forced to sign a promise to give up the practice of Falun Gong and had been placed on regular weekly reporting by the police. 

  5. At the Tribunal hearing the Tribunal member asked the Applicant a number of questions about Falun Gong. He told the Tribunal that after 1999 he had stopped practising the exercises and could no longer remember them or their names. Instead he simply practised the form of Chi Gong or meditation. He referred to the literature and the materials he had obtained in Germany.  He said he had lost his job as a result of his arrest and his child was no longer able to go to school.  He told the Tribunal, as he told the Court today, that he had in fact paid a bribe to leave China. He told the Tribunal that he had not made contact with Falun Gong practitioners in Australia, nor had he resumed practice of the exercises since his arrival. 

  6. The fact is that the Tribunal, whilst satisfied that the Applicant was a citizen of China, did not accept that he was a Falun Gong practitioner and the Tribunal member said he told the Applicant that at the hearing.  The Tribunal relied, amongst other things, on the fact that the Applicant had not resumed practising Falun Gong since he arrived in Australia where there is no legal or other reason why people cannot practice their belief.  The Tribunal did not accept the Applicant's claim to have been arrested upon his arrival in China after having been found with Falun Gong material. The Tribunal found this impossible to accept, and that is set out at p.68 of the Court Book.

  7. The fact is that the Tribunal did not accept that the Applicant was a Falun Gong practitioner, did not accept that he had fallen foul of the Chinese authorities, did not accept that he had lost his job or that his daughter was unable to go to school or his family was being harassed by the local street community.  In short, the Tribunal did not accept the Applicant's evidence. The Applicant in his submission told the Court that he was telling the truth and he just did not know why he was not believed. 

  8. This is a matter that gets down to credibility.  It is well-established that a credibility finding is a task for the administrative decision-maker, in this case the Tribunal member. Credibility is a matter of fact. I am referred to the decision of Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at para.67. If it appears that the findings about credibility are open to the Tribunal, there will be no jurisdictional error (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558-559 and see also W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at para.64-69). On reading the Tribunal decision I am satisfied it was open to the Tribunal to make the findings that it did.

  9. A Court conducting judicial review cannot review the merits of the Refugee Review Tribunal's decision, as was made quite clear in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Even if the Tribunal makes a wrong finding of fact, this is not a jurisdictional error. (See Abebe v Commonwealth (1999) 197 CLR 510 at 137). The unfortunate fact for the Applicant is that the Tribunal did not believe his evidence. That is entirely a function for the Tribunal and that is a not matter that the Court can overturn.

  10. I am satisfied, after having read the Tribunal's decision, that there is no jurisdictional error that has not been referred to. I find no jurisdictional error at all. The decision is a privative clause decision that attracts the protection of s.474 of the Migration Act. The application must be dismissed.

  11. The Applicant is to pay the First Respondent's costs. I am satisfied that the amount sought, being $2,500.00, is well within the scale provided by the Federal Magistrates Court Rules 2001. Those costs would have been significantly higher of course had counsel been briefed. But in the circumstances there is no reason why I should not make an order. I fix that amount at $2,500.00. I require a transcript of my reasons for this decision. The application is to be removed from the list of cases awaiting finalisation.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  20 December 2005

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