SZFWL v Minister for Immigration - [2006] FMCA 1015

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFWL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1015

MIGRATION – Refugee Review Tribunal – where applicant claims tribunal refused to accept untranslated document from him at hearing – failure to substantiate claim – application dismissed.

Judiciary Act 1903, s.39B
Migration Act 1958, ss.424A, 475A

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs ex parte Durairajahsingham (2000) 168 ALR 407, 74 ALJR 405
Selvaduraiv Minister for Immigration & Multicultural Affairs [2002] FCA 342
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286

Applicant:

SZFWL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG615 of 2005

Judgment of:

Riley FM

Hearing date:

14 July 2006

Date of Last Submission:

14 July 2006

Delivered at:

Sydney

Delivered on:

21 July 2006

REPRESENTATION

Advocate for the Applicant:

In person

Solicitor for the Respondent:

Ms Gray

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Refugee Review Tribunal be joined as the Second Respondent.
The name of the First Respondent in the title of the proceeding be amended to “The Minister for Immigration and Multicultural Affairs.”
The application filed on 11 March 2005 and amended on 30 May 2005 be dismissed
The applicant pay the First Respondent’s costs fixed in the sum of $3,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG615 of 2005

SZFWL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this proceeding, the applicant seeks writs of prohibition, certiorari and mandamus pursuant to s39b of the Judiciary Act 1903 (Cth) and s475a of the Migration Act 1958 (Cth) in respect of a decision handed down on 10 February 2005 by the Refugee Review Tribunal (“the Tribunal”).
The applicant claims to be a citizen of The People’s Republic of China and a Falun Gong practitioner. He arrived in Australia on 4 September 2004 and lodged an application for a protection visa on 15 September 2004. That application was refused by a delegate of the first respondent on 26 October 2004. The applicant applied to Tribunal on 26 October 2004 for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision.
The applicant filed an application in this court on 11 March 2005 and an amended application on 30 May 2005. The court made consent orders on 23 March 2005, which, among other things, required the applicant to file and serve any affidavit containing additional evidence relied upon, including a transcript of the Tribunal hearing, by 31 May 2005. The applicant did not do so. However, pursuant to the consent orders, the applicant filed an amended application on 30 May 2005 and written submissions on 30 June 2006. The first respondent filed written submissions on 5 July 2006.

Initial claims

The applicant claimed in his protection visa application that he was born on 11 April 1963 and was a deputy manager. He said that he became a Falun Gong practitioner and that on 3 September 2000 he went by bus with others took buses to Beijing. The applicant said that they went to Tiananmen Square and on 2 October 2000, the police arrested him and detained him for 15 days. He claimed to have been beaten and interrogated. After his release, the applicant said that he returned home and was downgraded at work and eventually left his position. However, he said that he obtained a new job and was promoted to Deputy Manager. The applicant claimed that during holidays, the police would warn him not to go out. He said that the police would sometimes visit his home to check whether he was practicing Falun Gong. He said that he often wrote “Falundafa is good” on walls.

Proceedings in the tribunal

The applicant’s application to the Tribunal contained no additional written claims. The applicant gave oral evidence to the Tribunal on

8 December 2004. The applicant produced his passport to the Tribunal. He said that he was able to pass legally out of China because he left from Beijing and it was only in his home town that he was in trouble with the PSB. The applicant told the Tribunal that he did not know the name of the Falun Gong Association in Australia.
The applicant produced to the Tribunal photographs of himself handing out Falun Gong literature in Chinatown. He said that these photographs were taken on the only occasion when he had undertaken this type of activity. He said that the photographs were taken on the advice of his agent because he needed evidence that he was associated with Falun Gong. The applicant also produced to the Tribunal an untranslated document which was dated 20 January 2002 which he said concerned a criminal with whom he had been in prison.
The applicant told the Tribunal that he started to practice Falun Gong in July 1998. He said that he went with some other people by bus to Tiananmen Square in October 2000. He said he was arrested on

2 October and detained for 15 days. After his release, he said that he had to report weekly to the PSB, and he had done that every week until he left for Australia in September 2004. The applicant stated that he had been sacked from his job but obtained a new job after some months. The applicant said that on 13 May 2004, he and four others decided to put up some banners. He said that one of them was arrested two days later and another a month later. He said that he feared that one of them would talk and he would be arrested, so he organised to come to Australia.
On 20 December 2004, the Tribunal received an untranslated document from the applicant. The Tribunal arranged for it to be translated. It said that the applicant had been absent from work for 15 days from

28 September 2000, he had been involved in illegal activities and that he had lost his job. The document was dated 26 April 2001.
On 4 January 2005, the Tribunal received a further untranslated document from the applicant together with some photographs. The Tribunal had the document translated. It was written apparently by the applicant and said that the accompanying photographs were of a Falun Gong poster the applicant had placed on a wall in China on 13 May 2004.
The Tribunal did not find the applicant to be a credible witness. The Tribunal considered that the applicant’s answers to questions were often equivocal and unconvincing and sometimes evasive. The Tribunal did not accept that the applicant was a genuine devotee of Falun Gong or that he was detained as a result of participating in a protest or that he had been under scrutiny by the Chinese authorities by reason of an association with Falun Gong.
The Tribunal noted that the photographs of the applicant taken in Chinatown had been taken for the express purpose of presenting evidence to the Tribunal and, apart from claiming to have attended Falun Gong activities in Chinatown, the applicant was unconnected with the Falun Dafa Association in Australia. The Tribunal considered that there was nothing to indicate that the poster in the photograph produced by the applicant was on a wall in China or that the applicant pasted it there. In relation to the 2002 document about another person’s detention, the Tribunal considered that it in no way established that the applicant himself underwent detention.
The Tribunal did not accept that the document concerning the applicant’s dismissal from his employment in 2000 indicated that the applicant was detained in October 2000 because he had participated in a protest. The Tribunal considered that the applicant’s claim to have reported each week to the PSB was incongruent with the fact that the applicant obtained a passport in his own name during this period and that he left China legally on that passport. The Tribunal noted that the applicant continued to reside unharmed at his usual address and continued unharmed in his usual employment after allegedly putting up posters on 13 May 2004 and allegedly being at risk of arrest.

The grounds of the application

The argument advanced in the written submissions filed by the applicant concerned s.424a of the Migration Act 1958. However, the applicant did not in his written submissions identify any relevant information for the purposes of s.424a. The applicant did not wish to make any further submissions about this ground at the hearing before this court. I have closely examined the Tribunal’s reasons for decision. I am unable to see any basis for an argument that there has been a jurisdictional error under s.424a of the Migration Act.
The grounds set out in the amended application are as follows:
(a)The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to China based o n the member of a particular social group in China. I was persecuted. I was detained by the Chinese authorities and suffered mental and physical torture from them when I was in China. I was required to reported to police weekly. I lost basic human rights and freedom when I was in China. However, the Tribunal did not believe that I was detained in October 2000 without any evidence. The Tribunal did not accept that I am a genuine devotee of Falun gong without any reasons and evidence. The Tribunal regarded the photos that I submitted to them were obtained just for the purpose of presenting evidence to the Tribunal without proper reasons. The Tribunal refused my application just because I had been able to get my passport to leave China, then refused to accept any of my explanation and evidence, however he refused to accept my explanation about paying large sum of money for getting my passport.
(b)The Tribunal officer did not consider the evidence and submission provided by me. A letter written on 7^th September 2000 by Mr Dong Qing ZHOU (he took three months to write) was not accepted by the Tribunal as evidence, the Tribunal officer refused to make copy of it and returned it to me. A letter written in 2003 in which my name was mentioned was not accepted by the Tribunal. I posted the evidence about my name being removed to the Tribunal the Tribunal did not even mention this when my application was considered.
(c)The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
(c)The Tribunal did not observe Migration Act 1958 properly to making the decision.
(d)The Tribunal did not provide me adequate particulars of the independent information
(e)The Tribunal did not provide me an adequate opportunity to respond the substance of the information,
Ground 1(a) essentially seeks merits review. It is well established that a court on judicial review is not empowered to review the merits of an administrative decision. See, for example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Tribunal is not required to accept the applicant’s version of events, even if the Tribunal has no rebutting evidence: Selvaduraiv Minister for Immigration & Multicultural Affairs [2002] FCA 342. In the present case, the Tribunal did not accept that the applicant was a Falun Gong practitioner largely because his claims were unconvincing and unsubstantiated. There was no jurisdictional error in that. More particularly, it is noted that the Tribunal concluded that the photographs of the applicant in Chinatown were obtained for the purpose of presenting evidence to the Tribunal on the basis of evidence that the applicant gave himself to that effect. Additionally, the Tribunal in its reasons noted the applicant’s evidence that he had paid “lots of money” to obtain his passport. However, on the applicant’s own evidence, it was a passport issued in his own name and on which he departed China legally.
Ground 1(b) alleges that the Tribunal refused to accept a document that the applicant attempted to file during the Tribunal hearing and another that he lodged after the Tribunal hearing. Notwithstanding the consent orders made on 23 March 2005 that the applicant file any affidavit he wished to rely upon, including a transcript of the proceedings before the Tribunal, on or before 31 May 2005, no such affidavit was filed by the applicant at any stage. Given that the applicant was unrepresented, he was asked at the hearing before this court whether he wished to give oral evidence in support of this ground. The applicant proceeded to do so with the assistance of a Mandarin interpreter.
The applicant told the court that he offered a document written in the Chinese language to the Tribunal but the Tribunal gave it back to him because it was untranslated. He said it was a document written by a Mr Zhou Tong Qing. Under cross examination, the applicant said that he had attended the directions hearing on 23 March 2005 personally and had the assistance of a Mandarin interpreter. He said that he had consented to the orders that were made on that date and in particular he had consented to the order that he file an affidavit including a transcript of the proceedings before the Tribunal on or before 31 May 2005. The applicant also said that he had received from the Tribunal a copy of the hearing tape. The applicant confirmed that, in accordance with the consent orders made on 23 March 2005, he had filed an amended application and written submissions. He also said that he had met a panel lawyer, Mr Greg Sarginson, on one occasion.
It was put to the applicant that it seemed incongruous that the Tribunal would have accepted the untranslated certificate dated 20 January 2002, and the untranslated documents filed after the hearing, but not the document allegedly written by Mr Zhou. The applicant did not provide a clear response. It is also odd that the applicant would have filed other untranslated documents after the hearing, but not the letter from Mr Zhou, if indeed he had wished the Tribunal to have regard to it. Most importantly, the applicant has not provided the court with a transcript of the Tribunal hearing.
In the circumstances, I am not satisfied that the applicant did seek to give the Tribunal a document that it refused to accept because it was in the Chinese language. There are only the applicant’s oral assertions in support of that claim and those assertions are inconsistent with the applicant’s own conduct in relation to other documents and the Tribunal’s conduct in relation to those other documents. In the absence of a transcript of the Tribunal hearing, I am not persuaded of the truth of the applicant’s assertion.
The applicant says in his amended application that the Tribunal ignored a document mentioning that the applicant’s name was removed. This is apparently a reference to the applicant being dismissed from his employment. However, the Tribunal did in fact refer to the removal of the applicant’s name from the rolls in its summary of the applicant’s claims. The Tribunal also referred in its findings and reasons to a document “purportedly relating to his dismissal from his employment”. This appears to be a reference to the very matter which the applicant says was not mentioned by the Tribunal. In all the circumstances, ground 1(b) is not made out.
Ground 1(c) claims that the Tribunal’s decision lacked rationality or a logical foundation. Lack of logic as such is not a reviewable error: VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286. In any event, the applicant has not identified any specific matter on which the Tribunal’s decision lacked logic or rationality and none is apparent. The Tribunal’s credibility findings were matters of fact for it to determine: Re Minister for Immigration and Multicultural Affairs ex parte Durairajahsingham (2000) 168 ALR 407, 74 ALJR 405. In the circumstances, ground 1(c) is without foundation.
The second ground 1(c) alleges that relevant procedures under the Migration Act were not properly observed. No particulars have been given of this ground. I am unable to detect any required procedure that was not observed. This ground is not made out.
Ground 1(d) alleges that the Tribunal did not provide the applicant with adequate particulars of independent information. No particulars have been given of this ground. In any event, the Tribunal does not appear to have relied on any independent information particulars of which needed to be given to the applicant. This ground is not made out.
Ground 1(e) alleges that the Tribunal did not provide the applicant with an adequate opportunity to respond to the substance of the information. No written particulars have been given of this ground. At the hearing before the court, the applicant indicated that he thought that the Tribunal should have sent him its reasons for him to comment on. There is clearly no obligation on the Tribunal to do that. This ground is not made out.
It follows that the application must be dismissed with costs, which I fix in the sum of $3,600.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:

Date: 19 July 2006