SZGNX v Minister for Immigration
[2006] FMCA 1812
•22 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGNX v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1812 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 483A |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 SAAP v Minister for Immigration [2005] HCA 24 SZECD v Minister for Immigration [2005] FMCA 554 |
| Applicant: | SZGNX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1576 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 5 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Ms Z Brauer of Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 17 June 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1576 of 2005
| SZGNX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 17 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 April 2005 and handed down on
13 May 2005, affirming a decision of the delegate of the first respondent made on 15 November 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGNX”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
A Court Book (“CB”) prepared by the respondents’ solicitors was filed and served on 29 July 2005, and is marked “Exhibit A” and read into evidence.
Background
The Tribunal decision of Hugh Wyndham, reference N04/50328, provides the following background information. The applicant, who claims to be a citizen of the People’s Republic of China (“the PRC”), arrived in Australia on 5 September 2004. On 19 October 2004, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 15 November 2004, a delegate of the Minister refused to grant a protection visa and on
14 December 2004, the applicant applied to the Tribunal for review of the decision.(CB 108)
In a statutory declaration attached to the original visa application, the applicant stated he had practiced Falun Gong since early 1997.(CB 26-29) He stated that together with others, he established one of the largest Falun Gong practice stations in Shinan District, Qingdao City, Shandong Province. After the ban on Falun Gong by the PRC Government in 1999, the applicant was obliged to join political study classes and to sign an undertaking not to practice Falun Gong again. The applicant stated that he signed the statement, but was still dismissed from work. Since then, he was unable to find normal jobs, because of his Falun Gong background. He claims that between October 1999 and December 2000, he was required to report to the local police once a month. He was also required to participate in political studies.
Since early 2001, he and a group of friends began formed a propaganda group called “the Voice of Dafa”, which secretly edited and distributed thousands of copies of Falun Gong material. The group established contacts with Falun Gong practitioners in Korea and the applicant states that he went to Korea twice to collect information and secretly bring them back to the PRC. From May 2003, the applicant led a group which manufactured and copied compact discs containing Falun Gong propaganda material. In August 2004, two of his colleagues were under investigation. The applicant decided to escape overseas because of his close association with them. Subsequent to his departure, his colleagues were arrested. The applicant’s home was searched on at least three occasions with his wife was investigated. The applicant claims that he has been placed on the Public Service Bureau (“PSB”) black list and would be arrested as soon as he returned to China.(CB 110-111)
Tribunal’s Findings and Reasons
A convenient summary of the Tribunal’s reasons was contained in the respondents’ written submissions prepared by Ms Brauer and I adopt paragraph 11 of those submissions:
11. The Tribunal:
a) was unable to accept the Applicant’s claims. The Tribunal found that the Applicant’s account of travels to Korea and bringing back Falun Gong materials, without being searched by the authorities, defied belief;
b) was not satisfied that the Applicant’s claim to have searched for a record of a 2004 Court verdict was genuine;
c) found the Applicant’s inability to demonstrate a knowledge of the theory of Falun Gong undermined his claimed adherence;
d) did not accept the Applicant’s letter of support form the Falun Dafa Association;
e) did not accept that the Applicant’s had been arrested for the practise of Falun Gong or that there are charges against him;
Application for Review of the Tribunal’s Decision
On 17 June 2005, the applicant filed an application for review under s.39B of the Judiciary Act, which contains the following grounds:
1.I am a refugee according to the definition in the Article 1A(2) of the Convention and the Refugees Protocol.
2.I fear the persecution from my own country and the fear is well founded. I am a Falun Gong practitioner, but it is against law to practice Falun Gong in China.
On 15 August 2005, the applicant filed an amended application, which contained the following statement:
The decision involved an error of law in that:
(a) The decision involved an important exercise of the power conferred by the Migration Act and Regulations.
(b) There was no evidence or the other materials to justify the making of the decision.
It should be accepted that I am genuine practitioner of Falun Gong because I am able to demonstrate that knowledge of the Falun Gong practitioner.
I was really ever arrested for the practice of Falun Gong when I was in China.
If I return to China, I would face a risk of being jailed for reason of the practice of Falun Gong.
Submissions and Reasons
The applicant appeared self-represented with the aid of a Mandarin interpreter. He attended a directions hearing on 30 June 2005 before Registrar McIllhatton. At that time, he indicated to the Court that he wished to participate in the Court’s free Legal Advice Scheme and was allocated a panel lawyer. However, correspondence on the Court file indicates that the applicant failed to make contact with the panel lawyer and despite numerous attempts, the panel lawyer was unable to contact the applicant. Orders were made at the directions hearing for the applicant to file an amended application with supporting affidavit material and written submissions prior to the hearing. An amended application was filed and is reproduced at [10] above. No written submissions were received and the applicant confirmed that he had not attempted to file any submissions. When the applicant was invited to make oral submissions, he repeated the statements contained in the amended application and commented on the trips he had made to Korea to obtain the material promoting Falun Gong. The applicant said that he returned to the PRC by ship because of the risk involved in bringing Falun Gong propaganda into the country.
In her written submissions, Ms Brauer submits that the grounds in the initial application for judicial review sought to review the merits of the case. Similarly, the amended application seeks the same and also asserts that there was no evidence to justify the making of the decision. Ms Brauer submits that such grounds of review are formulaic and do not specifically address the particular facts of the applicant’s case or the Tribunal’s decision.
I accept Ms Brauer’s submissions and agree that the original and amended application ask the Court to conduct a merits review. Clearly, merits review is not available to this Court, see Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]:
…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision…
I refer to my comments in SZECD v Minister for Immigration [2005] FMCA 554 in respect of the Court conducting merits review in such a situation. Merits review is an assessment of the appropriateness of a decision as distinct from judicial review, which focuses on lawfulness of the earlier decision. Judicial review asks whether the decision-maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances. Merits review provides a complete rehearing of all of the issues relevant to the application. That reviewing body considers the relevant material and any new evidence, and then makes a decision about the merits of the application unfettered by the earlier decision. Merits review therefore determines the correct preferable decision in all the circumstances.
Ms Brauer submits that there is no discernable error in the Tribunal decision. The Tribunal invited the applicant to attend at a hearing, which the applicant did. The Tribunal considered all of the applicant’s claims and came to the conclusion that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention.
Ms Brauer submits that the Tribunal did not accept the applicant’s claims for three main reasons. First, it found that the applicant’s story of travelling to Korea three times and returning with Falun Gong material without being searched by the PRC authorities “defies belief”.(CB 113) This information was provided by the applicant in his statement attached to the application for review to the Tribunal as a letter to the Tribunal and dated 12 December 2004.(CB 52-53) It is submitted, and I accept, that the information is exempt pursuant to s.424A(3)(b) of the Act and accordingly does not enliven any obligation under s.424A of the Act.
Secondly, the Tribunal rejected a letter of support as the letter was written by a person unknown to the Falun Gong association.(CB 113) The Tribunal wrote to the applicant on 24 March 2005 setting out the particulars of its information and explaining its relevance.(CB 95) The applicant responded to the Tribunal letter on 19 April 2005.(CB 97) Ms Brauer submits, and I accept, that the Tribunal complied with its s.424A obligation in relation to this information.
Thirdly, the Tribunal rejected the applicant’s claim to have been arrested for practising Falun Gong, that he had been charged in absentia, or that there were charges pending against him.(CB 113) This was also put to the applicant for comment by the Tribunal in a letter of 24 March 2005.(CB 95) Again, I accept the submission that the Tribunal met its obligation under s.424A.
Conclusion
The applicant in these proceedings is a self-represented litigant appeared with the assistance of a Mandarin interpreter. This places an obligation on this Court to independently consider whether any argument based on the material or contained in the Court Book could be identified as a jurisdictional error: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. I acknowledge that the applicant faces great difficulties as he does not speak the language, nor does he understand the legal system in which he has brought these proceedings. Although he was provided with the opportunity to receive independent legal advice under the Court sponsored scheme, he has not availed himself of this opportunity. It is apparent that the applicant does not comprehend aspects of the proceedings or how he was to succeed in his application. The applicant has complied with the Court orders to file an amended application, but neither it nor the original application identifies any grounds of review. To fulfil the Court’s obligation, I have reviewed the decision and material contained in the Court Book and I am satisfied that it is not apparent on the face of the documents that any grounds of review exist to suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, I believe that the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 18 December 2006
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