SZFHP v Minister for Immigration
[2005] FMCA 1637
•2 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFHP v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1637 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of China claiming fear of persecution for reason of religion – Falun Gong – credibility. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 474, 475A
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed
Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271
Yo Han Chung v University of Sydney [2002] FCA 186
| Applicant: | SZFHP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3719 of 2004 |
| Delivered on: | 2 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 2 November 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Bird |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Leave granted to join Refugee Review Tribunal as Second Respondent.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00. I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3719 of 2004
| SZFHP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The tribunal made its decision on 29th October 2004 after a hearing that took place on 11th October 2004. The Tribunal handed down its decision on 23rd November 2004 affirming the decision of a delegate not to grant a protection visa to the Applicant.
The Applicant is a citizen of the People’s Republic of China who arrived in Australia on 21st May 2004. He applied for a Protection (Class XA) Visa on 24th May 2004.claiming a fear of persecution because he was a practitioner of Falun Gong. His application was refused on 31st May.
The Applicant sought a review of that decision by the Refugee Review Tribunal. He attended a hearing of the Tribunal on 11th October 2004 accompanied by his migration agent, Mr Shiu Lun Peter Wong. The Applicant gave oral evidence to the Tribunal with the assistance of a Mandarin interpreter. The Applicant told the Tribunal that after the Chinese Government had banned Falun Gong, the factory where he worked warned him against continuing to practice it. He said he did not stop and was eventually interrogated by the police who detained him for three days and beat him. The police warned him that he would be imprisoned if he continued.
He left China on a passport in his own name and travelled to Australia. In its decision the Tribunal noted that although the Applicant claims to practice Falun Gong at least twice a week on a piece of grass near Central Railway Station, he was not able to name the five sets of exercises, claiming to have forgotten them. The Applicant was not able to tell the Tribunal member the location of the Falun (i.e. “law wheel”) saying that he had seen a wheel in the sky like a rainbow after practicing the exercises.
The Tribunal did not accept that the Applicant is a practitioner of Falun Gong or that he was detained or otherwise persecuted in China as a result of his being a Falun Gong practitioner. The Tribunal said at page 97 of the Court book:
I consider that the Applicant has fabricated his claims in an attempt to bring himself within the definition of a refugee.
The Tribunal found that the Applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act1958 for the grant of a protection visa, nor was he the spouse or dependant of a person who holds a protection visa as required by s.36(2)(b) of the Act. Consequently, the Tribunal affirmed the decision of the delegate not to grant a protection visa.
The Applicant filed his application for review of the Tribunal’s decision on 22nd December 2004, within the time prescribed by s.477(1A) of the Migration Act. He filed an Amended Application on 14th April 2005. The Amended Application does not claim to have been brought under s.39B of the Judiciary Act1903, nor does it seek the issue of any constitutional writ. The original application claims to be made under s. 39B of the Act and seeks an order setting aside the Tribunal decision, so I will treat both applications as one combined application.
The combined applications claim:
(a) procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed;
(b) the Tribunal member, Giles Short did not consider my case properly or did not consider the information which is in my favour.
The grounds given in the two applications consist of statements of facts about the Applicant’s history. They do not claim any jurisdictional error. The Applicant did not file any Written Outline of Submissions before the hearing, although I note that he filed a Notice of Address for service on 9th August this year. The solicitors for the First Respondent Minister filed a Written Outline of Submissions on 19th October, in which they submit that the Applicant’s application failed because of the view that the RRT took of his credibility. They rely on the well-known decision of Justice McHugh in Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407; (2000) HCA 1, where it was held that findings in relation to credibility where such findings are reasonably open on the evidence are properly the function of the decision-maker and generally not susceptible to judicial review.
The Respondents submit that the findings adverse to the Applicant’s credibility were clearly open on the evidence before the Tribunal. They submit that the RRT decision is a privative clause decision as defined by s.474(2) of the Migration Act. Section 474 operates to prevent judicial review of all such decisions except those vitiated by jurisdictional error. Accordingly, they seek that the application should be dismissed with costs.
The Applicant attended Court for the hearing of his application. He was not legally represented but he had the assistance of a Mandarin interpreter. I explained to him that I would follow the procedure necessary for the application to comply with the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24 by granting leave to join the Refugee Review Tribunal as second respondent to the application.
I asked the Applicant certain questions about the matters set out in his applications. I noted that he had claimed that in making its decision the Refugee Review Tribunal did not observe procedures that were required by the Migration Regulations to be observed. I asked the Applicant to explain that and he was not able to point to any procedural failure or any regulation that had not been complied with. His answer to the question was to tell the Court that he was a Falun Gong practitioner and was detained for three days and then escaped from China.
The Applicant told the Court that he was mistreated by the Refugee Review Tribunal. When I asked him why that was, he replied that Australia is a fair country and he thought that Falun Gong members would be treated fairly in Australia.
I noted that the Applicant had claimed that the Tribunal member had not considered his case properly. I asked the Applicant to explain this and he said,
My family members are still in China and are persecuted.
He went on to say that recently his wife was detained again.
I noted that the Applicant claimed that the Tribunal member did not consider information in his favour. When I asked him what information in his favour had not been considered, his reply was
My refugee application.
I put to the Applicant that the Tribunal had asked him some questions about the practice of Falun Gong but he was not able to answer correctly. The Applicant said that he had forgotten and that he was nervous at the hearing.
The Applicant told the Court that the Refugee Review Tribunal did not treat him fairly. When asked why that was he said that the Tribunal had asked him some questions and he wanted to add more information.
He said that as far as obtaining a passport was concerned, he had wanted to tell the Tribunal that a friend of his had raised a lot of money to bribe officials and get a passport for him. He said that it is because of corruption amongst Chinese officials that members of the community can bribe Government officials and obtain passports.
The Applicant told the Court that the RRT’s attitude towards him was poor. When asked to explain that he said that all he told the Tribunal was true. The Applicant said that he did not tell a lie to the Tribunal.
The Applicant finished his submissions by saying that in China family members and friends of his are persecuted and he dares not go back to China.
For the Respondent Minister, Mr Bird, solicitor, relied on his written submissions and also submitted that the Applicant’s claims both in his combined application and in his oral submission to the Court constituted no more than a request for a merits review, which is not available in this Court.
He also pointed out that the provisions of s.424A of the Migration Act had not been breached by the Tribunal in that the Applicant had in his application for review specifically asked the Tribunal to refer to his statement at the Department of Immigration and Multicultural and Indigenous Affairs. As such the Applicant can be taken to have given that information for the purpose of the application for review. He referred the Court to the decision of the Honourable Justice Merkel in VUAV v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCA 1271. That decision, I note, is a decision on appeal from a decision of the Federal Magistrates Court and as such is binding upon this Court.
The Applicant did not make any submissions in reply.
I have considered the application and the Amended Application which, as I said, I have treated as a combined application. In my view it does not set out any grounds for judicial review. Statements of fact relating to the Applicant’s claims are, as has been submitted on behalf of the Respondent, no more than a request for a merits review of the RRT decision. It is well-established in decisions such as Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 that a Court conducting judicial review does not review the merits of the decision-maker’s findings. It is not open to the Court to substitute its own view of the facts for the view taken by the decision-maker.
It is clear that the Tribunal was not satisfied as to the credibility of the Applicant. The Tribunal made adverse findings as to the Applicant’s credibility, particularly at page 97 of the Court book. It is well established in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham, to which I have previously referred that a finding on credibility is the function of the primary decision-maker par excellence. As McHugh J said 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. The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.
I have considered the submissions made by the solicitor for the Respondent Minister in respect of whether there is a breach of s.424A of the Migration Act. I note that at paragraphs 7 through to 13 in VUAV v Minister for Immigration & Multicultural & Indigenous Affairs, to which I have previously referred, Merkel J considered a situation which to my mind is similar if not identical to the one that is before the Court. In that case the appellant as he then was in his application for review in giving his reasons for making the application had said, amongst other things,
Please refer to my previous statement for further information.
As I have noted at page 46 of the Court book in the matter before me, the Applicant in this case had said in his application for review,
Please refer to my statement at DIMIA.
The meanings of the two statements are the same and it would appear that the decision in VUAV v MIMIA is one which I’m bound to follow. At [9] Merkel J said
In the circumstances of the present case sub-s 424A (1) required the RRT to give notice to the appellant and invite his comment upon the information in his visa application form provided that it was not given by the appellant for the purpose of his application for review (see s 424A (3) (b) and Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27).
At [10], his Honour went on to say,
However, as was pointed out by Gray J in M55 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCA 131 at [25], “If an applicant for review in or as part of the application for review relies upon information provided by the applicant in or as part of the application for a visa, the applicant will be taken to have given that information for the purpose of the application for review. As is apparent from the decisions in SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCA 931 and NAZY v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCA 744 views may differ on whether that criterion has been satisfied in the particular case.
At [11] Merkel J said:
In the present case the criterion has been set aside. In the appellant’s application for review in giving his reasons for making the application, the appellant stated inter alia, “Please refer to my previous statement for further information.”
In my view the Applicant in this case cannot be heard to complain that s.424A has been breached as his previous application to the Department of Immigration and Multicultural and Indigenous Affairs, including the details about his passport, has been relied upon by him for making the application for review. It follows then that the Tribunal acted correctly in making the findings that they did.
I am also mindful of the fact that the Applicant is not legally represented. It is of course doubly hard for an unrepresented litigant when proceedings are conducted in a language other than the litigant’s own. Even the presence of a capable interpreter does not put an unrepresented litigant in a favourable position. I am mindful that the decision of Yo Han Chung v University of Sydney (2002) FCA 186, paragraphs 31 to 34:
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 conducted my own examination of the decision and the supporting material contained in the Court book. I am not satisfied that any jurisdictional error appears. I am satisfied from my reading that I cannot discern any reviewable error. It follows then that the decision of the Refugee Review Tribunal is a privative clause decision and is not subject to judicial review.
The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The sum sought is $3,000.00. It is appropriate to consider whether or not a costs order should be made before considering the quantum of costs. In my view this is a matter where I should make an order for costs. The Applicant has been wholly unsuccessful in his claim and in the ordinary course of events in this jurisdiction the Court would exercise its discretion in favour of the successful party and make a costs order. I propose to do so in this case.
It is not a matter for consideration in deciding whether or not to make an order for costs that the unsuccessful party does not have the funds to meet that order. It is however, a matter for consideration in deciding whether or not to allow time to pay. The amount of costs that is sought is $3,000.00 on a party and party basis. That is a claim well within the amounts in the range set out in Schedule 1 of the Federal Magistrates Court Rules. It is an appropriate figure and I propose to allow costs in the sum of $3,000.00. It is certainly the practice of the Federal Magistrates Court to set costs in a fixed sum rather than have costs assessed or taxed.
I now take into account the fact that the Applicant is not in work at present. He says that he is being supported by a friend. To my mind I should give some consideration to allowing time to pay. I allow four months to pay the costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 9 November 2005
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