SZFJW v Minister for Immigration - [2005] FMCA 1966

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFJW v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1966

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 – credibility – Falun Gong.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A
Federal Magistrates Court Rules 2001

Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514

Applicant:

SZFJW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 20 of 2005

Judgment of:

Scarlett FM

Hearing date:

16 December 2005

Date of Last Submission:

16 December 2005

Delivered at:

Sydney

Delivered on:

16 December 2005

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Mr Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Leave to join Refugee Review Tribunal as a party.
That the Refugee Review Tribunal is joined as Second Respondent to the application.
That the application is dismissed.
That the Applicant is to pay the First Respondent’s costs in the sum of $4,000.00 and I allow (8) eight months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 20 of 2005

SZFJW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 5 November 2004 after a hearing that took place on 6 October 2004 which the applicant attended. The Refugee Review Tribunal handed down its decision on 7 December 2004. The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 10 June 2004 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 20 May 2004. He applied for a protection visa on 7 June of that year but the Minister's delegate refused the application three days later. On 9 July 2004 the applicant filed an application for review of that decision. He accompanied his application with a statement supporting his claim in which he claimed a well-founded fear of persecution related to the Convention ground of membership of a particular social group, Falun Gong practitioners. This appears at Court Book p.49.
The applicant stated his beliefs that:
a)He would be arrested and sentenced to many years imprisonment on his return to China due to his deep involvement with Falun Gong and that this harm or mistreatment would involve serious harm.
b)His fear, arrest and imprisonment would constitute systematic and discriminatory conduct.
He claimed that a number of Falun Gong practitioners known to him had been arrested and their gathering place in Xianghe County had been destroyed by the authorities. He stated that he had been listed by the police as a wanted person and his wife, who had remained in China, had been interrogated by the police.
The Tribunal wrote to the applicant on 6 September 2004 inviting him to attend a hearing on 6 October. The applicant attended and told the Tribunal that some of the information on his visa application was incorrect, including the fact that his brother held Irish citizenship.

The Tribunal member was rather concerned that the applicant initially declined to provide any information about his residential address after having advised the Tribunal that the address he had originally was fabricated. He later told the Tribunal that he was living at Bowen in Queensland (see Court Book p.77).
The Tribunal found that the applicant was a national of the People's Republic of China and assessed his claims against that country.

The Tribunal found the applicant to be "evasive and uncooperative" on a number of issues including his place of residence in Australia and his possession of a previous passport. The applicant's refugee claim arose from his actual and perceived adherence to Falun Gong which he claimed was the reason for his past persecution and the reason for his fear of persecution if he were to return to China.
The Tribunal noted that the applicant had a knowledge or familiarity with Falun Gong exercises and key concepts. However, the Tribunal expressed serious doubts about the precautionary steps that the applicant claimed to have taken in China as a Falun Gong adherent and was not satisfied that he would have been able to obtain a passport if he had been of adverse interest to the Chinese authorities even by paying bribes. In addition, the Tribunal was sceptical about the applicant's account of the circumstances of the applicant's departure from China which did not appear to the Tribunal to be consistent with the behaviour of a genuine refugee.
For the Tribunal the strongest evidence that led to the conclusion that the applicant's claimed adherence to Falun Gong lacked veracity was the evidence of the applicant's conduct after he had arrived in Australia. At no time did the applicant seek to continue the communal practice of Falun Gong which he claimed had been part of his life in China, nor did he seek to share his claimed experience with any other Falun Gong practitioner. The Tribunal found that the applicant was not a Falun Gong adherent, nor would he be perceived as one by the Chinese authorities. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in China for the reason of his adherence to Falun Gong or any other Convention reason and affirmed the decision of the delegate not to grant a protection visa to the applicant.
The applicant filed his application at this Court on 5 January 2005 and filed an amended application on 4 April. In his amended application the applicant seeks the following:
a)A declaration that the Tribunal's decision was invalid and contrary to law.
b)An order in the nature of certiorari.
c)An order in the nature of mandamus.
d)Costs; and
e)Any other order that the Court sees fit.
The applicant relies on the following grounds:
a)An error of law constituting a jurisdictional error; and
b)A procedural error constituting an absence of natural justice.
The particulars of those two grounds are, first, that the Tribunal should have heard his application at the same time as that of his cousin who is also seeking a protection visa, and second, that there were breaches of ss.424 & 424A by the Tribunal.
The first ground can be simply dealt with. The applicant never asked the Tribunal for a joint hearing with his cousin, nor did he ask the Tribunal to take evidence from her when he completed his response to hearing invitation. A copy of the response to hearing invitation appears at p.61 of the Court Book. I have been referred to the decision of Edmonds J in SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514. This is an appeal from a decision of the Federal Magistrates Court. It is clear from the decision in SZEGT that the Tribunal was not under an obligation to make any inquiry and was certainly not a matter that was so unreasonable that no reasonable person would have exercised any power.
It is clear, however, that the Tribunal was under no obligation to conduct the hearings of the two parties together or to take evidence from one party in the hearing or the other because at no time had the applicant ever brought this matter to the attention of the Tribunal.

In my view, the ground fails because no jurisdictional error is shown.
As far as the second ground is concerned, the amended application states the following:
The Tribunal has in fact regarded relevant country information as evidence or part of reasons in making the decision on the review. However, according to s.424 of the Act, the Tribunal failed to invite me to give additional information while it has regard to that information in making the decision on the review.

Further, particularly according to s.424A of the Act, the Tribunal must give to me in the way that the Tribunal considers appropriate in the circumstances particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review and ensure, so far as is reasonably practicable, that I understand why it is relevant to the review and invite me to comment on it. Unfortunately the Tribunal failed to do so.
This ground can be dealt with fairly speedily as well. The Tribunal decision does not refer to any country information. The Tribunal was not satisfied about the credibility of the applicant's evidence.

Country information comes within the exception set out in s.424A(3)(a) of the Migration Act being information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.
It is well-established that findings as to credibility of a witness are matters that are solely for the administrative decision-maker (see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at para.67). There is no error as long as the Tribunal's credibility findings are open to it (see Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 at 558-559).
In his oral submissions to the Court today the applicant said that he believed that the Refugee Review Tribunal was prejudiced against him because the Tribunal did not give him enough time to state his own reasons. He said that the hearing was recorded and the Court could listen to a cassette tape of the proceedings. He did not have a copy of the tape, nor did he produce transcript. He did not ask for a copy of the tape.
The applicant also said that he did not think that the Tribunal member was qualified to verify whether or not he was in fact a Falun Gong practitioner. The Tribunal member did not have enough knowledge in the applicant's opinion. He again suggested to the Court that the Court should listen to the original sound recording. He said that before he finished his reply the Tribunal member changed to another topic.
The applicant complained that the Tribunal asked him why he did not practice Falun Gong with other practitioners. The applicant was of the view that the Tribunal member was ignorant of the practice of Falun Gong. He said that there was no requirement for Falun Gong members to practice at any time or in any place. He said in China there are millions of people who are practising Falun Gong right at that moment, but they are not practising openly. He asked rhetorically whether it could be said that those people were not then really Falun Gong practitioners.
For the respondent Minister Mr Kennett of counsel submitted that the Tribunal was not under any obligation to inquire whether the applicant had another source of information that could be brought into play at the hearing. The failure to inquire was not an unreasonable action and there was no jurisdictional error. Even if one could find a duty to inquire in s.424 of the Act, this case would not come into that category he submitted.
Dealing with what was a potentially significant matter in the applicant's oral argument, being the argument that the Tribunal member cut off the applicant, that is in fact not supported by the applicant's case. As I said, to make out the argument that the Tribunal member had gone too far one would need to be able to arrange for at least a transcript of the hearing and there was none. The applicant in reply said that he was nervous at the Tribunal hearing. He reiterated his claim that the Tribunal member was not aware of Falun Gong and wished to know why it was that the Tribunal member did not believe his evidence.

He raised the fact that he had provided a real address to the Tribunal before the hearing started. He reiterated his claim that the Tribunal was prejudiced against him.
I would comment that prejudice or bias or bad faith is a serious allegation that arouses a question of personal fault on the part of the decision-maker. The Full Court of the Federal Court has dealt with this matter in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361. It is a serious allegation and it should not be made lightly and it must be specifically argued and proved. It is a rare occurrence that prejudice or bias will be discerned solely from the Tribunal reasons. To my mind there is no evidence of prejudice or bias or lack of bona fides.
This case gets down to the fact that the Tribunal did not accept the applicant's evidence. The Tribunal did not rely on country information. It did not rely on any other information as to the reason or part of the reason for affirming the decision of the Minister's delegate.

The Tribunal was well aware that the applicant's claim to be a Falun Gong practitioner was the basis of his claim that he had a well-founded fear of persecution if he were to return to his native China based on his activities as a Falun Gong practitioner and indeed a proselytiser in the past.
The Tribunal did not accept the applicant's evidence. The Tribunal did not regard the applicant's evidence as sufficient to make out his case and the Tribunal was not satisfied that in a number of important aspects that the applicant's evidence was credible. As I said earlier, this is entirely a matter for the Tribunal. I have read through the Tribunal decision carefully, mindful of the fact that the applicant is not legally represented. I am unable to discern any other jurisdictional error than that alleged by the applicant. In my view, there is no jurisdictional error. There is no error that calls upon the Court to review the decision and the decision is therefore a privative clause as defined in s.474 of the Migration Act. As a privative clause decision it is protected by the operation of s.474 of that Act.
It follows then that the application must be dismissed. I propose to make an order, amongst other things, dismissing the application. I will make an order both granting leave to add the Refugee Review Tribunal as a party to the proceeding and in fact joining the Tribunal as second respondent to the application in order to comply with the ruling of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.
There is an application for costs which counsel for the respondent Minister estimates to amount to some $4,000.00 including counsel's fees. The applicant has been wholly unsuccessful and there would be no reason in this jurisdiction why the Court should not make an order for costs. The amount sought, being $4,000.00 inclusive of counsel's fees, is well within the scale envisaged by the Federal Magistrates Court Rules 2001. If anything, it is lower than many of the costs applications that have been put to me in the last few weeks.
Nevertheless, the sum of $4,000.00 is an amount that the applicant says that he cannot pay. He says that he has been unemployed for a long period of time and has spent all of his savings. That is certainly a regrettable situation but not, unfortunately, a reason for the Court not to make a costs order at all. It is, however, a reason that the Court would take into account as far as granting time to pay is concerned. If I did not grant time to pay the applicant would be required to pay those costs within 28 days and from what he says he just does not have the ability to do so.
I will make an order for costs, but I will allow time to pay.

The applicant is allowed eight months to pay the costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 11 January 2006