SZGYO v Minister for Immigration
[2007] FMCA 241
•21 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGYO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 241 |
| MIGRATION – Visa – Protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming decision not to grant protection visa – citizen of People's Republic of China claiming fear of persecution as a Falun Gong practitioner – no reviewable error. |
| Migration Act 1958 (Cth), s.474 |
| Applicant: | SZGYO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3060 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 February 2007 |
| Date of last submission: | 21 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Broderick |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs in the sum of $2,750.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3060 of 2006
| SZGYO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 29th August 2006 after a hearing that took place earlier that same day. The decision was handed down on 19th September 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The Applicant now seeks a review of that decision.
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 14th November 2004. He applied for a protection visa on 10th December in that year. A delegate of the Minister refused his application on 16th February 2005. On 22nd March 2005 the Applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal affirmed the delegate's decision on 27th June 2005. The Applicant then sought judicial review of that decision from the Federal Magistrates Court. On 24th April 2006 Lloyd-Jones FM made orders by consent quashing the decision of the Tribunal and directing the Tribunal to reconsider the matter according to law.
The application was returned to the Tribunal and the Tribunal wrote to the applicant inviting him to attend the further hearing. The applicant attended a hearing on 29 August 2006. The basis of his application is that he claims to fear persecution if he returns to China because of his practice of Falun Gong in that country. The Tribunal asked the applicant a number of questions about Falun Gong in general and about his practice of it in particular. The Tribunal noted that the applicant said that he had not practised Falun Gong since he had arrived in Australia in November 2004.
The Tribunal handed down its decision on 19th September 2006. A copy of that decision can be found on pages 86 through to 92 of the Court Book. The Tribunal's findings and reasons are set out on pages 90 through to 92 of the Court Book. The Tribunal found that the Applicant is a national of the People's Republic of China as he has claimed. The Tribunal based that decision on the photocopy of the Applicant's passport issued by the People's Republic of China. The Tribunal did not, however, accept that the Applicant was a credible witness. As the Tribunal set out on page 90 of the Court Book:
However, for the reasons set out herein, the Tribunal does not accept the present applicant is a witness of truth. It is sufficiently satisfied the present applicant is not a witness of truth such that to the extent it has not expressly rejected his material claims elsewhere, it finds that none of the applicant's material claims to invoke refugee protection obligations in Australia are true.
The Tribunal set out its reasons for making those findings under three subject headings. First, the Tribunal referred to the Applicant's previous travel outside the People's Republic of China. The Tribunal noted that the Applicant had travelled to Malaysia for two days in the year 2004 before he travelled to Australia. The Tribunal noted that the Applicant had not applied for protection as a refugee in Malaysia nor had he even made any inquiries about obtaining refugee protection in Malaysia. The Tribunal found that to be inconsistent with his claims of fearing persecution in the People's Republic of China for reasons of his practice of Falun Gong.
Under the heading of the Applicant's practice of and knowledge of Falun Gong the Tribunal sets out details of the questions asked by the Tribunal and the Applicant's answers. The Tribunal was not satisfied about the Applicant's practice of Falun Gong and noted that the Applicant explained that he had not practised Falun Gong since he arrived in Australia in November 2004. On the question of the acquisition of his passport the Tribunal noted that the Applicant claimed that he had paid a bribe to obtain a passport and visa but the Tribunal was not satisfied that the Applicant was a generally credible witness and rejected that claim as untrue.
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason in the People's Republic of China. The Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa. The Applicant filed an application for review and an affidavit in support in this Court on 20 October 2006. In the application the Applicant asks that the decision made by the Refugee Review Tribunal should be set aside and that there should be an order made in the nature of mandamus requiring the Tribunal to review according to law the decision made by the delegate.
The application sets out the three grounds for review:
(i) The Tribunal does not address my written claim.
(ii)That a breach of the rules of natural justice occurred in connection with the making of the decision.
(iii)The Tribunal does not adequately take into account that I would be put into danger if I returned to China.
The Applicant's affidavit in support annexes a copy of the Tribunal decision. In the affidavit the Applicant says this:
(i) I have no intention to go back to China.
(ii) The decision of Refugee Review Tribunal be set aside.
The Applicant has not filed any amended application nor has he filed any written outline of submissions. He has attended Court today and I have asked him questions about the case. He has told the Court that he could not return to China before he had once been a Falun Gong practitioner. He agreed that the Tribunal had asked him questions about Falun Gong and he had given evidence about that subject. He said that the Tribunal had not given him natural justice in the making of the decision because everything he had told the Tribunal was true but the Tribunal had still refused to grant his application. He added that all he has claimed in his application is the truth and he wanted a fair judgment.
The First Respondent Minister filed a written outline of submissions on 14 February 2007. The First Respondent submits that there is no merit to any of the grounds pleaded by the Applicant. The Respondent submits it is clear that the Tribunal considered the Applicant's claims as contained in the statement provided with his application to the Department and the Applicant had also made a written statement to the Tribunal when he submitted his application. As far as the claim of a breach of the rules of natural justice is concerned, the First Respondent submits that the decision is one to which s.422B of the Migration Act applies. The submission is that the Tribunal did comply with its obligations in Part 7 Division 4 of the Migration Act which is all that it was required to do. The Tribunal wrote to the Applicant inviting him to attend the hearing and gave him the prescribed period of notice.
In my view it is clear that the Tribunal did address the Applicant's claim. The Tribunal noted that the Applicant claimed a fear of persecution because he is a Falun Gong practitioner and that is what the Tribunal considered. In my view the Tribunal has considered the claim that the Applicant made and has considered it fully. There is no breach of the rules of natural justice in the way that the Tribunal dealt with the application. The Tribunal invited the Applicant to attend a hearing and he did attend and give evidence. The Tribunal considered the Applicant's evidence but was not satisfied that the Applicant was a credible witness.
A finding of credibility is entirely a matter for the Tribunal and in my view there was evidence before it upon which the Tribunal could be satisfied that the Applicant was not a credible witness. As to the Applicant's third claim that the Tribunal did not adequately take into account that he would be put into danger if he were to return to China, that is a claim for merits review, in other words, a claim for a review of the decision on the facts. Factual matters are the subject of decisions by the Tribunal and not for the Court. The Court does not reconsider the factual aspect of the Applicant's claim and make its own decision based on those facts. In my view the Tribunal's decision was one that was supported by the evidence before the Tribunal.
The Applicant is not legally represented and I have read through the decision thoroughly myself in order to ascertain whether any arguable case can be made for any other jurisdictional error. I am satisfied that there is no jurisdictional error apparent in this decision. As there is no jurisdictional error, the decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Accordingly, the decision is not subject to any orders in the nature of certiorari or mandamus which the applicant seeks. It follows that the application will be dismissed.
There is an application for costs on behalf of the Respondent Minister in the sum of $2,750.00. The Applicant has told the Court that he does not have the financial capacity to pay that amount. I accept the fact that he does not have the funds available at the moment and that it would be difficult for him to raise that money in the short term. That is not a reason not to make an order for costs in favour of the Respondent who has been successful, but it is something I will take into account when considering time to pay. The amount of $2,750.00 which is sought is an appropriate figure.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 2 March 2007
0
0
1