SZGZC v Minister for Immigration
[2007] FMCA 2047
•5 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGZC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2047 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant a citizen of China claiming fear of persecution for reasons of membership in a particular social group – no reviewable error. |
| Migration Act 1958, (Cth) ss.424A, 425, 474 |
| SZAZT v Minister for Immigration & Citizenship [2007] FCA 1661 |
| Applicant: | SZGZC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 550 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 December 2007 |
| Date of Last Submission: | 5 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,700.00 and I allow five months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 550 of 2007
| SZGZC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant is a citizen of the People's Republic of China. He asks the Court to set aside a decision of the Refugee Review Tribunal refusing him a protection visa. He also asks the Court to make an order sending his application for a visa back to the Tribunal to reconsider according to law.
The applicant claims that the Tribunal fell into error in three ways.
(i)by failing to consider the whole of his matter;
(ii)because it was not reasonable for the Tribunal to deny that he was ever detained in 2000 for his alleged practice of Falun Gong;
(iii)because the Tribunal's finding is illogical.
The applicant arrived in Australia on 1 February 2005. Three days later on 4 February he applied for a protection (Class XA) visa. He did so on the basis of a fear of persecution if he were to return to China as a practitioner of Falun Gong. A delegate of the Minister refused his application for a visa on 5 March 2005. So on 30 March that year the applicant applied to the Refugee Review Tribunal for a review of that decision. However, on 22 June 2005 the Refugee Review Tribunal affirmed the delegate's decision.
The applicant then sought judicial review of that decision from the Federal Magistrates Court. He filed an application and on 29 September 2006 the Court made orders by consent granting his application and issuing writs of certiorari and mandamus. The applicant's application was then remitted to the Refugee Review Tribunal according to the Court's order. The Tribunal then wrote to the applicant and invited him to attend another hearing before a different Tribunal member. The applicant attended that hearing on 6 December 2006 and gave evidence about his refugee claims.
The Tribunal, however, had already written to the applicant on 10 November 2006 in a letter written in order to comply with the provisions of s.424A of the Migration Act. That letter told the applicant that the Tribunal had information that would, subject to any comments he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The information was set out in a lengthy attachment to the letter and the letter told the applicant that the Tribunal may make adverse findings based on that information about his protection visa application. The Tribunal invited the applicant to comment on that invitation in writing in English by 5 December 2006, the day before the hearing.
The applicant wrote back to the Tribunal in a letter set out on pages 67 through to 70 of the Court Book commenting on this letter and information forwarded by the Tribunal. That letter was hand delivered to the Tribunal on 5 December 2006. After the hearing the Tribunal handed down its decision on 18 January 2007. A copy of the Tribunal decision record can be found at pages 75 through to 86 of the Court Book. In that decision the Tribunal set out the applicant's claims and evidence, including the applicant's oral evidence to the previous Tribunal on 20 June 2005. The Tribunal referred to the s.424A letter of 10 November 2006 and the information which was contained in that letter, being essentially a draft copy of the Tribunal's earlier decision. The Tribunal also referred to the applicant's comments in reply and quoted extensively from those comments at pages 81 through to 83 of the Court Book.
The Tribunal's findings and reasons can be found at pages 83 to 86 of the Court Book. In the findings and reasons the Tribunal accepted that the applicant is a national of the People's Republic of China based on the photocopy of the applicant's passport that appears on the department's file. The Tribunal set out its findings and reasons under three headings:
(a)Credibility;
(b)The applicant's alleged detention in the People's Republic of China; and
(c)The strength of the applicant's convictions.
The primary finding by the Tribunal related to its perception of the applicant's credibility. It is fair to say that the Tribunal wholeheartedly rejected the credibility of the applicant's claims based on his evidence. The Tribunal said:
That said, for the reasons set out herein, I do not accept that the present applicant is witness of truth. For instance, I am satisfied the applicant was prepared to embellish (if not entirely fabricate) his evidence for the sole purpose of enhancing his claim to be owed refugee protection obligations in Australia. Based on the adverse credibility findings herein, and the significance of the evidence that was disbelieved, I am sufficiently satisfied the present applicant is not a witness of truth, such that I am satisfied there are reasonable grounds to reject all of his material claims. Thus, to the extent I have not expressly rejected his material claims elsewhere, given I am sufficiently satisfied he is not a witness of truth, I find that none of the applicant's material claims to invoke refugee protection obligations in Australia are true[1].
[1] See Court Book at page 83
As to the applicant's alleged detention in the People's Republic of China, the Tribunal expressed dissatisfaction with that claim, saying:
I am satisfied he provided the subsequent evidence for two further periods of detention (for reason of his Falun Gong practice) for the sole purpose of enhancing his claim to invoke refugee protection obligations in Australia. The Tribunal thus has rejected these claims as false. This is the first reason that ultimately satisfied me the applicant was not a witness of truth[2].
[2] See Court Book at page 84
As to the strength of the applicant's convictions, the third heading, the Tribunal again was not satisfied that on the evidence before it that the suppression of his practice of Falun Gong if he were to return to the People's Republic of China would constitute persecution. The Tribunal was not satisfied there was a real chance that the applicant would give voice to his alleged convictions and come to the adverse attention of the authorities or other persons in the People's Republic of China. The Tribunal stressed, however, at page 86 of the Court Book that the Tribunal had made its ultimate finding based on the cumulative adverse credibility findings set out under the other two subheadings; credibility and the applicant's alleged detention in the People's Republic of China.
The Tribunal was not satisfied the applicant had a well-founded fear of persecution for a Convention reason in the People's Republic of China and affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant has sought judicial review of this decision by means of an application and an affidavit filed on 19 February 2007. Apart from procedural documents notifying the Court of his change of address, the applicant has not filed any more recent documents. He set out three grounds upon which he relied in his application which I will repeat:
i)Failure to consider the whole of his claim.
ii)The fact that it was not reasonable for the Tribunal to deny the applicant was ever detained in 2000 for his alleged practice of Falun Gong.
iii)The Tribunal made a finding which was illogical.
The applicant did not provide any written submissions in support of those claims and elected not to make any oral submissions. In answer to a question from the Court after a brief oral submission from Mr Cleary of counsel for the Minister, the applicant said that he did tell the truth, that if the Tribunal did not believe him that was the Tribunal's fault. He complained that the Tribunal did not believe him to be a practitioner of Falun Gong.
Counsel for the respondent Minister, Mr Cleary, submitted that the primary reason for the Tribunal's rejection of the applicant's claims was a matter of credibility and the Tribunal did not believe any of the applicant's claims. Because the Tribunal did not believe any of the applicant's claims the Tribunal was not satisfied the applicant was a refugee.
Mr Cleary submitted that the applicant's first ground was without merit because the Tribunal had considered the applicant's claims thoroughly. He submitted that the second ground was in effect a request to the Court to undertake merits review of the Tribunal's decision. He submitted that as the third ground of review was unparticularised it could not be meaningfully addressed. In conclusion he submitted that all three grounds relied on by the applicant should be rejected. He further submitted that the Tribunal decision did not disclose any reviewable error and asked the Court to dismiss the application.
In my reading of the decision I am satisfied that the basic reason for the Tribunal's rejection of the applicant's claims was its wholesale rejection of the applicant's evidence on credibility grounds. The Tribunal did not accept the applicant as a witness of truth. Credibility is a matter for the administrative decision-maker and provided that there is evidence upon which the decision-maker can be satisfied about the applicant's credibility, then there is no scope for the Court conducting judicial review to interfere.
Whilst the applicant claimed that the Tribunal did not consider the whole of his matter, my reading of the Tribunal decision indicates that the Tribunal did and wholeheartedly rejected his claims based primarily on his lack of credibility. The Tribunal just did not believe the applicant.
As to the second ground, the claim that it was not reasonable for the Tribunal to deny that the applicant was ever detained in the year 2000 for his alleged practice of Falun Gong, the applicant is seeking to challenge a factual finding made by the Tribunal. It is in effect inviting the Court to conduct merits review. I am referred to the decision on appeal from the Federal Magistrates Court in SZAZT v Minister for Immigration & Citizenship [2007] FCA 1661 at [7] where it was held that findings of fact are the primary function of the Tribunal and it is not within the jurisdiction of the Court to reconsider the merits of the applicant's claims.
As to the third ground of review, the applicant claims the Tribunal's finding was illogical. I am not able to discern how the Tribunal finding is at all illogical and the applicant has not pointed to any specific illogicality. Even if illogicality were a ground of review, it has not been made out in this case. In my view, all three of the applicant's claims have not been sustained.
I am mindful of the fact that the applicant is not legally represented. I have read through the Tribunal decision myself independent of either the applicant's claims or the Minister's submissions in order to satisfy myself that the decision does not disclose any arguable case of jurisdictional error. The Tribunal, to my mind, appears to have clearly complied with s.424A of the Migration Act. The Tribunal invited the applicant to attend another hearing and provided him with an interpreter. There is no evidence of any breach of s.425 of the Migration Ac. To my mind, no jurisdictional error has been made out.
Accordingly, the Tribunal decision is a privative clause decision as defined in sub-s.474 (2) of the Migration Act. Because it is a privative clause decision orders in the nature of certiorari and mandamus are not available. It follows that the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister. In my view, this is an appropriate case for a costs order. The amount sought is $4700. Whilst that is a reasonable figure, the applicant says he does not have the funds available to meet it. He told the Court that he is not working. In my view, the Court should take that into consideration in allowing time to pay and I propose to allow five month to pay.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 18 December 2007
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