SZGVW v Minister for Immigration & Anor
[2006] FMCA 1937
•22 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGVW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1937 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution as a Falun Gong practitioner – credibility – merits review – no reviewable error. PRACTICE & PROCEDURE – Amended application – leave to rely on amended application filed in court – where applicant had no knowledge of contents of amended application. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B, 424A, 425, 474 |
| Applicant: | SZGVW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2005 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 December 2006 |
| Date of Last Submission: | 22 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,600.00 and I will allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2005 of 2005
| SZGVW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 8th June 2005 and handed down on 30th June.
The Tribunal affirmed a decision of the Delegate of the Minister not to grant the applicant a protection visa.
The applicant seeks an order in the nature of mandamus requiring the Tribunal to determine the application according to law.
The applicant is a citizen of the People's Republic of China who arrived in Australia on 2nd December 2004. On 7th January 2005 she applied for a protection (class XA) visa claiming a fear of persecution on the basis of being a Falun Gong practitioner. The application was refused on 21st February so the applicant applied to the Refugee Review Tribunal for review of that decision.
The applicant lodged her application for review on 18th March 2005. She did not provide any other documents to the Tribunal at the time of her application.
The Tribunal wrote to the applicant on 18th April 2005 inviting her to attend a hearing on 8th June. The applicant attended the hearing and gave oral evidence with the assistance of an interpreter in the Mandarin language. The Tribunal asked her a number of questions about her history and Falun Gong beliefs.
A copy of the Tribunal's decision record appears at pages 62 to 70 of the Court Book. The findings and reasons are set out on pages 68 and 69.
The Tribunal accepted that the applicant is a Citizen of China.
The applicant had provided a copy of her passport when she applied for a protection visa. However, the Tribunal found itself unable to accept any of the applicant's claims relevant to her application for her protection. The Tribunal was critical about the applicant's lack of knowledge of Falun Gong, saying:
The questions I asked were not abstruse or designed to fail her. They were central to Falun Gong teaching. I would accept some lack of knowledge, but that she was unable to answer any of my questions about Falun Gong teachings causes me to find that she is not, as claimed, a practitioner of Falun Gong. The limited knowledge she displayed is easily learned from material widely available in Australia.[1]
[1] See Court Book at 68
The Tribunal took the view that the fact that the applicant had had no encounter with the PSB since March 2000 and was able to obtain a passport in her own name and leave the country without difficulty was an indication that the applicant was of no interest to the security authorities in China. Again, the Tribunal considered that the fact that the applicant did not leave China until some four years after her claimed tension added to the view that she did not fear persecution during that time. In short, the Tribunal did not accept the applicant's claims.
The Tribunal found that the applicant was not a practitioner of Falun Gong, or that she had suffered harm amounting to persecution in the past for any reason. The Tribunal found that the applicant did not have a well-founded fear of persecution in China for reason of her political opinion, real or imputed, or membership of a particular social group, or any other Convention reason, and affirmed the decision not to grant the applicant a protection visa.
The applicant filed an application seeking judicial review of the Tribunal's decision on 28th July 2005. She filed an amended application on 9th November 2005. On 29th September 2006 the applicant attempted to file a further amended application. She was advised to serve an unsealed copy on the first respondent's solicitors, and seek leave to file the amended application in Court.
The applicant attended Court, and I granted leave to rely on the further amended application even though a copy had not been served on the first respondent's solicitors.
The further amended application contained five grounds: (1) the Tribunal failed to give natural justice; (2) the applicant was denied procedural fairness in connection with the making of the decision; (3) the making of the decision was an improper exercise of power conferred by the enactment in pursuance of which it was purported to be made; (4) the decision was otherwise contrary to law; (5) the decision did not adequately take into account that the applicant would be placed in danger if returned to the People's Republic of China.
Particulars:
(a) the Tribunal was not satisfied that I am a Falun Gong Practitioner but actually I am practitioner. Even sometimes I still practice it after I arrived in Australia. Even my knowledge of Falun Gong is limited but I am a Falun Gong Practitioner; (b) it is illogical that the Tribunal does not accept that the PSB were looking for me in 2000.
The applicant did not file any written submissions. When she was asked to expand on the brief material in her amended application she first of all asked the Court what was meant by the term natural justice. When it was put to her that the first ground of her amended application claimed that the Tribunal failed to give her natural justice the applicant said that she had written out her amended application but someone else had translated it for her.
The applicant was asked to expand upon her second ground, claiming that she was denied procedural fairness in connection to the making of the decision. Her reply was to say that she did not feel very well and was "a bit confused". It soon became clear that the applicant did not have the slightest knowledge about anything in her amended application at all.
I then gave her the opportunity to say whatever she wanted to say in support of her application. The applicant then told the Court that she had read a newspaper article saying that there are some places in China where human organs are sold and they were near to where she lived. She claimed to fear that this might happen to her. When the applicant was asked why she did not mention this to the Tribunal at the hearing on 8th June 2005 the applicant said she had only found out about the situation in the middle of 2006.
The applicant also told the Court that she liked Australia very much and wished to stay in Australia.
In considering the grounds in the amended application there does not appear to me to be any failure to provide natural justice, or failure to provide procedural fairness in the way the Tribunal conducted the hearing. In any event, this application is a matter to which the provisions of s.422B of the Migration Act apply.
There is no breach of s.425 of the Migration Act. The Tribunal wrote to the applicant and invited her to attend the hearing which she attended. She gave oral evidence with the assistance of an interpreter in the Mandarin language. There is no claim that the interpreter at the Tribunal hearing was not up to the task, or that the applicant was not able to give evidence, or not able to give evidence properly in some way or another. I am of a view there is no failure to provide natural justice or procedural fairness.
Turning to the claim in the third ground that the making of the decision was an improper exercise of the power conferred by the enactment in pursuant of which it was purported to be made, I presume that this is intended to mean that the Tribunal fell into some form of jurisdictional error. I am unable to see any jurisdictional error, and indeed it has not been particularised.
There is no breach of s.424A of the Migration Act. It is clear from the Tribunal decision that the Tribunal was not satisfied that the applicant met the criteria for a visa based on the view that the Tribunal took of the credibility of the applicant's evidence at the Tribunal hearing.
Information provided by the applicant to the Tribunal for the purpose of the hearing comes under the exception in s.424A(3)(b) of the Migration Act. There is no breach of s.424A of the Act.
As to the claim that the decision was otherwise concreted law in the applicant's fourth ground there are no particulars provided, nor am I am able to discern any aspect of the decision that was contrary to law.
The fifth ground states that the decision did not adequately take into account that the applicant would be placed in danger if returned to PR China. The particulars were that the Tribunal was not satisfied that the applicant was a Falun Gong practitioner, but the applicant says that she is and that the applicant believes it is illogical that the Tribunal did not accept that the Public Security Bureau for looking for her in 2000.
These grounds are no more than a challenge to the Tribunal's factual findings. It is no more than an application for merits review. Merits review is not available on judicial review by the Federal Magistrates Court. So long as there is evidence upon which factual findings can be made, then it is not open to the Court to interfere.
The applicant has not made out any jurisdictional error. On my reading of the decision, having read the decision independently of the submissions on behalf of the Minister and independently of the applicant's claims, I am not able to discern any arguable case for a jurisdictional error. In my view, there is no jurisdictional error, and the Tribunal decision is a privative clause decision as defined by
sub-s.474(2) of the Migration Act.
Consequently, the decision is not subject to the order in the nature of mandamus which the applicant seeks. The application will be dismissed, and I will hear submissions on costs sought.
There is an application for costs on behalf of the first respondent Minister in the sum of $2,600.00. The amount sought is to my mind an appropriate figure. Against this the applicant says that she cannot meet the costs as she does not have work and has no income. Whilst that is not a matter that would persuade the Court not to make an order for costs it is a matter to be taken into account on the question of time to pay, and I propose to allow three months to pay.
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: 9 January 2007
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