SZFMK v Minister for Immigration

Case •

[2007] FMCA 1496

•

12 September 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFMK v MINISTER FOR IMMIGRATION & ANOR (No.2) [2007] FMCA 1496
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution as Falun Gong practitioner – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424A, 425, 474

SZFMK v Minister for Immigration & Anor [2007] FMCA 924
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
Applicant: SZFMK
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3601 of 2006
Judgment of: Scarlett FM
Hearing date: 8 August 2007
Date of last submission: 8 August 2007
Delivered at: Sydney
Delivered on: 12 September 2007

REPRESENTATION

Counsel for the Applicant: Mr Killalea
Solicitors for the Applicant: Chancellor & Rados
Counsel for the Respondent: Mr Smith
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3601 of 2006

SZFMK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

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 signed on 13th November 2006 and handed down on 14th November 2006.  The Tribunal affirmed the decision of a Delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.

  2. The Applicant commenced proceedings on 5th December 2006 by means of an application and affidavit seeking judicial review. He filed an amended application on 5th June 2007 and a further amended application on 20th July 2007. The matter came before the Court for Final Hearing originally on 5th June where an application was made for leave to rely on an amended application prepared well outside the time scale set out in the directions made by consent.

  3. There was also an application for an adjournment to obtain a transcript of the Refugee Review Tribunal. I granted the application, albeit reluctantly, and made further directions for hearing and ordered that the Applicant was to pay the First Respondent's costs thrown away. My reasons for that decision were placed on the record. (See SZFMK v Minister for Immigration & Anor [2007] FMCA 924).

  4. The Applicant filed this amended application on 20th July 2007 seeking the following:

    a)A writ of certiorari to be issued directed to the Second Respondent Tribunal quashing the Second Respondent's decision.

    b)That a writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine, according to law, the application for review.

    c)An order for costs.

Background

  1. The background to this matter is that the Applicant is a citizen of the People's Republic of China who arrived in Australia on 12th August 2004 and applied for a Protection (Class XA) visa from what was then know as the Minister for Immigration & Multicultural Affairs on 27th August 2004. On 15th September in that year a Delegate of the Minister refused the application for a visa.  

  2. The Applicant then sought review of that decision from the Refugee Review Tribunal which affirmed the decision on 26th November 2004.  The Applicant then sought judicial review of the Tribunal's decision by the Federal Magistrates Court. On 10th July 2006 Lloyd-Jones FM made orders by consent:

    a)The Refugee Review Tribunal be joined as Second Respondent to the proceedings.

    b)There be an order in the nature of certiorari to quash the Tribunal's decision and  

    c)Making an order in the nature of mandamus requiring the Second Respondent to review the Delegate's decision according to law.

    d)Costs.

Application for Review by the Refugee Review Tribunal

  1. The application was duly remitted to the Tribunal and the application was indeed further considered by the Tribunal. The Tribunal wrote to the Applicant on 24th August 2006 inviting the Applicant to attend the hearing to take place on 20th September in that year. The Applicant attended the hearing and provided a copy of the relevant pages of the Applicant's passport. The Applicant also provided a statement. That statement was received on 27th August 2004 and was further considered by the Tribunal.

  2. The Tribunal handed down its decision on 14th November 2006. A copy of the Tribunal decision record can be found in the Court Book at pages 96 through to 110. In that decision the Tribunal set out a summary of the Applicant's claims and evidence, including claims made to the Department and claims made in the application for review.  The Tribunal also considered the evidence of the Applicant given at the hearing on 20th September 2006 where the Applicant gave evidence with the assistance of an interpreter in the Mandarin language. He was accompanied by his advisor who is a registered Migration Agent. 

  3. The Tribunal noted that the Applicant had brought his passport to the hearing and a copy was obtained. The Tribunal asked the Applicant a series of questions about his personal background and details and the Applicant told the Tribunal that he was born in 1973 and was married in 1999. He left China in August 2004 without restriction or questioning. He arrived with a tour group and after three days in Brisbane he left Brisbane and travelled to Sydney. He said that he had obtained a Chinese passport in the year 2000. 

  4. The Applicant claimed to have been detained for four months in the year 2004 because he was a leading member of the Falun Gong group and was concerned that he would be detained again if he were to return. The Tribunal then asked the Applicant a number of questions about his history and his claim.

  5. The Tribunal noted that on 11th November the Tribunal received a further submission from the Applicant's advisor, together with a report prepared by a clinical psychologist and that report provided a clinical opinion that the Applicant suffered from post traumatic stress disorder.  The Tribunal considered the report and also considered Independent Country Information about China, Human Rights and Falun Gong.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out in the Court Book at pages 106 through to 110.  The Tribunal accepted that the Applicant was a citizen of the People's Republic of China and I note that the Applicant had provided his passport for that purpose.  The Tribunal did not, however, accept that the Applicant was a current Falun Gong practitioner or that he practised Falun Gong in China or that he organised Falun Gong activities in China. 

  2. The Tribunal did not accept the Applicant was a Falun Gong practitioner in Australia.  More particularly the Tribunal did not accept the Applicant's claim that he had been detained by local authorities for three days in 2001 or for 30 days in 2003 or for four months in 2003/2004.  The Tribunal did not accept that if the Applicant had been subject to administrative detention in 2003 for organising Falun Gong practice in his work place that he would have been permitted to return to work at his place of employment.

  3. Again, the Tribunal did not accept that the Applicant was released from detention in October 2003 and continued to write to government authorities protesting at the way in which Falun Gong practitioners were being treated in China. The Tribunal found his conduct in writing to government authorities was not consistent with his later claim that he had to flee China leaving his wife and child because of a fear of further mistreatment.

  4. The Tribunal found that the Applicant's explanation for this inconsistency was that he only decided to leave China because he had suffered a lot of mistreatment whilst in detention for three to four months in 2003/2004.  The Tribunal said:

    His evidence on this subject is not logical or consistent and I do not accept it.[1]

    The Tribunal noted that the Applicant claimed to have been beaten whilst in detention having had sustained a fractured skull. The Tribunal said:

    At hearing I gave the applicant further time to produce evidence of the injury however he did not produce that evidence and did not contact the Tribunal prior to the making of this decision to seek further time or to give any explanation. In these circumstances and taking into account my other findings I do not accept that the applicant was held in detention in 2003/2004 and beaten as claimed at hearing.[2]

    [1] Court Book page 107

    [2] Ibid

  5. The Tribunal made this finding which was the subject of a submission made to the Court by the Applicant's counsel:

    I find that the level of knowledge demonstrated by the applicant on the principles of Falun Gong practice indicated that he has a superficial knowledge of Falun Gong practice however he did not demonstrate the level of knowledge I would have expected of a person who had a long and committed association with Falun Gong practice in China from 1996 to 2004.[3]

    [3] Court Book 108

  6. The Tribunal considered the psychologist's report and the Tribunal accepted that the Applicant was depressed, anxious and stressed but held:

    However there is nothing in the report which can objectively explain the reason for these negative emotional states other than the history given by the applicant.  There is no reason for the psychologist to question the history as he is not required to test the evidence of the applicant in the same manner as required by inquisitorial process. [4]

    The Tribunal went on to find that the psychologist's opinion was substantially based on the evidence given by the Applicant, which evidence the Tribunal had rejected. 

    [4] See Court Book at page 107

  7. The Tribunal did not accept the Applicant's factual history and therefore did not accept that the symptoms described and the condition or emotional state experienced by the Applicant was the result of Convention related mistreatment in China.

  8. The Tribunal did not accept that if the Applicant returned to China at the date of the hearing or in the foreseeable future he would face a real chance of persecution for reasons of Falun Gong practice in China or Australia or for reasons of imputed anti-government opinion. The Tribunal was not satisfied that the Applicant had a well founded fear of persecution for any Convention related reason and affirmed the decision not to grant the Applicant a Protection (Class XA) visa.

The Application for Judicial Review

  1. The Applicant is of the view that the Tribunal fell into jurisdictional error.  The grounds set out in the application are:

    a)The decision is affected by jurisdictional error in that the Second Respondent failed to accord procedural fairness to the Applicant and/or breached the requirements of s.425 of the Migration Act 1958.

    Particulars:

    (i)     That the Tribunal found (Page 108 of the Court Book):

    “However he did not demonstrate the level of knowledge (of Falun Gong practice) I would have expected of a person who had a long and committed practice in China from 1996 to 2004”. 

    The amended application actually quotes the Tribunal as saying:

    That the applicant had a long and committed practice in China from 1906 to 2004.

    But I am prepared to accept that that is an error.

    (ii)The RRT did not inform the applicant of the nature and   content of the "knowledge" expected of a person having "a long and committed practice” to Falun Gong" and did not identify the above as a matter in issue.

    (iii)SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.

  2. The second ground is that the decision is affected by jurisdictional error and that the Second Respondent breached s.424A of the Migration Act 1958. The particulars of that claim relate to the same finding and the fact that the Tribunal did not raise that particular issue with the Applicant in contravention of s.424A.

  3. The Applicant was represented at the hearing by Mr Killalea of counsel.  Mr Killalea submitted that there was nowhere in the transcript of the hearing tapes that anything said about what level of knowledge the Tribunal would have expected of a Falun Gong practitioner; this was not said and he submitted that that was procedurally unfair. 

  4. He also submitted that the unfairness was that the Applicant was being judged against an unknown standard and that standard, or the level of knowledge, was not information that was personal to the Applicant but that by relying on this particular level of knowledge the Tribunal had failed to provide particulars of that level of knowledge to the Applicant under the provisions of s.424A(1), explain to him why it was relevant and give him the opportunity to comment on it.

  5. For the Respondent Minister Mr Smith of counsel noted that the Applicant had completely recast his case from earlier. In respect of the first ground the allegation of the breach of s.425 he submitted that:

    Section 425 does not require the Tribunal to tell the applicant every finding that it may make or the reasons for it.  So long as the applicant has a reasonable opportunity to ascertain the issues on the review and has the opportunity to give evidence and present arguments about them s.425 is complied with.

  6. He distinguished the fact situation in this case from that in SZBEL because the Applicant was aware that his practice of Falun Gong, and in particular his knowledge of Falun Gong was in issue.  He went on to submit that:

    First, the Tribunal's original decision was based on the finding that the applicant had no ‘affiliation at all with Falun Gong’ (See Court Book at page 68); secondly, here the extent of the applicant's knowledge was not anywhere in the material before the Delegate and so the Delegate's findings could not be said to have implied an acceptance of it.  On the contrary, it is implicit in the Delegate's findings that his entire credit (and thus his involvement with Falun Gong) was in issue; thirdly, the Tribunal asked questions that invited the applicant to expand upon his written claims and, to the extent that they touched upon his knowledge of Falun Gong practice, to show that he was in fact a genuine practitioner. 

  7. Mr Smith submitted that there was no breach of s.425.

  8. Mr Smith also submitted that there was no breach of s.424A because:

    There was no ‘information’ that the Tribunal considered would be the reason or part of the reason for its decision in relation to the applicant's knowledge of Falun Gong.  If there had been, it would have been set out in the statement prepared under s.430. The statement reveals that it was the Tribunal's analysis of the applicant's evidence rather than any knowledge of a fact that led it to find that the applicant's knowledge of Falun Gong was superficial.  That is not ‘information’: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]. There was thus no obligation under, and no breach of s.424A.

  9. Dealing with these two claims it certainly is plain that the Applicant has always claimed that he would be at risk of harm because he was a practitioner of Falun Gong.  This was set out in the Delegate's decision which appears at page 45 of the Court Book and the Delegate considered the Applicant on this basis. When the Delegate indicated that he was not satisfied that the Applicant had a well founded fear of persecution if he were to return to the People's Republic of China he gave the reason:

    The applicant has not provided any evidence of his involvement with the Falun Gong movement or evidence of his connection to his friend in Australia who sent him copies of the book "Poisonous Deceit".[5]

    [5] See Court Book at page 48.

  10. It would appear clear then that the Applicant has been aware that his knowledge of Falun Gong and his practice of Falun Gong has been a relevant issue since 15th September 2004 when the Delegate's decision was made, or shortly after it when the Applicant actually received a copy.  Similarly the earlier Tribunal decision signed on 26th November 2004 and handed down on 16th December in that year also referred to the Applicant's allegiance, or claimed allegiance to Falun Gong.

  11. On that occasion the Applicant did not attend the Tribunal hearing and the matter was dealt with by the Tribunal under the provisions of s.426A of the Migration Act. However the Tribunal did say:

    The Applicant claims that Falun Gong makes him healthy and alleviates his asthma. Although he claims to have been an instructor at his workplace back in the 1990s, he provided no evidence of any appreciation of its teachings or tenets beyond this superficial reference to his health.  The Tribunal is troubled by the Applicant's failure to make himself available to allow the Tribunal to test his knowledge of Falun Gong teachings and Falun Gong exercises.[6]

    [6] See Court Book at pages 67-68.

  12. I am satisfied that the Applicant was well aware that his practice of Falun Gong and the genuineness of that claim was clearly an issue.  In my view this is a very situation from that set out in the decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs and I am satisfied that there is no failure by the Tribunal to accord the Applicant procedural fairness.

  13. This is not a case where the Tribunal did not give the Applicant a sufficient opportunity to give evidence or make submissions about what was a determinative issue arising in relation to the decision under review. (See SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[7]). 

    [7] [2006] HCA 63

  14. As to the claim of a breach of s.424A of the Migration Act there was no information that should have been provided to the Applicant for his comments under the provisions of s.424A(1). The statement by the Tribunal Member:

    I find that the level of knowledge demonstrated by the applicant on the principles of Falun Gong practice indicate that he has a superficial knowledge of Falun Gong practice however he did not demonstrate the level of knowledge I would have expected of a person who had a long and committed association with Falun Gong practice in China from 1996 to 2004.

    is not a statement referring to a particular piece of information. It is the Tribunal's assessment of the Applicant's evidence about his practise of Falun Gong.

  15. It is the Tribunal's conclusion arrived at a consideration of the evidence and is not a reference to any particular piece of information that should have been put to the Applicant. As there is no information there is no breach of s.424A.

  16. In my view no jurisdictional error has been demonstrated. It follows that the decision of the Tribunal is a privative clause decision and is not therefore, under the provisions of s.474 of the Act, subject to orders in the nature of certiorari or mandamus.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  5 September 2007


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0