SZGZE v Minister for Immigration
[2007] FMCA 917
•15 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGZE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 917 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1993(Cth), s.39B Migration Act 1958 (Cth), ss.91X, s.483A. |
| Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 SAAP v Minister for Immigration [2005] HCA 24 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 117 WAEE v Minister for Immigration (2003) 75 ALD 630 |
| Applicant: | SZGZE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2203 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser (appearing on a direct access basis) |
| Counsel for the First Respondent: | Mr P L Carr |
| Solicitors for the First Respondent: | Ms T Quinn of DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration & Citizenship’.
The application filed on 16 August 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 |
SYG2203 of 2005
| SZGZE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym "SZGZE".
These proceedings were commenced by an application under s.39B of the Judiciary Act 1993 (Cth) invoking s.483A of the Act filed in the Sydney registry of the Federal Magistrates Court of Australia on
16 August 2005 for judicial review of a decision of the Refugee Review Tribunal ("The Tribunal"). The Tribunal decision was made on 8 August 2005 affirming a decision of the delegate of the first respondent made on 17 June 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant has not sought to join the Tribunal as a party, however given 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 respondent's solicitors was filed on 13 October 2005. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of H Wyndham, reference NO5/51533, provides the following background information:
The applicant who claims to be a citizen of the People's Republic of China arrived in Australia on 24 July 2004. On 3 June 2005 she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). On 17 June 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 22 June 2005 the applicant applied for review of that decision.(CB 191)
The applicant's original claims were contained in two statutory declarations attached to her visa application. At the Tribunal hearing, she gave oral evidence and provided a new statement which was substantially different to her original claims. The applicant's new claims are summarised in paragraph 16 of the first respondent’s written submissions provided by Mr Carr and I adopt those submissions for the purposes of this judgment:
(a)She left China because of corruption, unemployment, feelings of depression and her dislike of Communist rule in China.
(b)She had obtained a visa to come to Australia which she thought was for three years but was in fact only for three months.
(c)Upon arrival in Australia she commenced work as a live-in family helper and was detained on 19 May 2005.
(d)In detention she learnt that she could apply for refugee status.
(e)She retained an agent (Mr Zhang) who taught her what to say and arranged a "letter from China". She felt unsettled about this conduct.
(f)Because her claims were Falun Gong related she started to go to Falun Gong group exercises, was studying it for about a month and read the Zhuan Falun.
(g)She noticed that there was a miracle as a number of her pre-existing medical conditions had cleared up; this strengthened her resolve to cultivate Dafa.
(h)She received advice from fellow Falun Gong practitioners to withdraw her false statement and to tell the truth.
(i)She now has full belief in Falun Dafa and will continue to practise the daily study and exercises.
The Tribunal’s finding and reasons
A summary of the Tribunal's reasons is also contained in the first respondent's written submissions and I adopt paragraphs 24 to 27 of those submissions:
24.The RRT found it was impossible to accept the applicant's claims as she had repeatedly lied to Australian officials and was not truthful at the hearing (CB 202).
25.The RRT found the following:
(a) The applicant had been significantly involved in embellishing the Zhang version in her first statutory declaration (CB 202).
(b) The applicant's assertion that she was "unsettled in her heart" and "did not know what to do" were incompatible comments with her substantial embellishment of the Zhang version in her first Statutory Declaration.
(c) The sincerity of the three authors of the letters was not doubted, however they were found to carry no weight as they provided little assistance as to the genuineness of her conversion (CB 203).
(d) When considering the genuineness of the applicant's conversion the RRT considered the applicant's claim that her recent practice of Falun Gong had cured several troubling and long standing ailments. The RRT noted there was no evidence, apart from that given by the applicant, that she had suffered any of these ailments. Further, the alleged consultation with the doctor at the detention centre was not supported by evidence apart from what the applicant had said at the hearing. (CB 203).
(e) It was noted that the primary claim included a reference to the applicant's skin allergy having been cured by the practise of Falun Gong and that this was a change she had made to the Zhang statement. As the statement was made on 6 June, before she had commenced to practice Falun Gong, the RRT held that the applicant had been cured of this ailment prior to that date and that her new claim that she had been cured some time between 6 June and 11 July was untrue (CB 203). The RRT held that the applicant was still being untruthful to the RRT and that her new evidence was entirely unsatisfactory.
26.The RRT did not accept that the applicant had made a genuine commitment to Falun Gong and did not accept that she would continue to practise if she returned to China.
27.The RRT was not satisfied on the evidence that the applicant had a well-founded fear of persecution.
Application for review of the Tribunal decision
On 16 August 2005, the applicant filed an application for review under s.39B of the Judiciary Act. At the first Court date on 14 September 2005, leave was granted for the applicant to file an amended application identifying each ground of review relied upon with complete particulars. The applicant complied with those orders and filed an amended application on 16 November 2005 containing three grounds of review:
1.[Not pressed]
2.One matter the Tribunal took into account in making its decision was that, in response to the applicant's claim that the practise of Falun Gong had cured her of certain skin ailments, "there is no evidence before me that she has ever suffered any of these ailments". (CB 203.5) However, there was evidence - at CB 135.7. The Tribunal ignored this evidence, giving rise to jurisdictional error.
3.[Not pressed]
Submissions and reasons
The written submissions filed by Mr Zipser on behalf of the applicant indicate that the applicant wished to abandon the third ground of the amended application. At the commencement of the hearing, Mr Zipser further informed the Court that as he had also become aware of material adverse to the first ground, that ground was also withdrawn. The sole remaining ground related to the “no evidence” issue.
Mr Zipser submits that the Tribunal, in response to the applicant's claim that the practise of Falun Gong had cured her of certain skin ailments, took into account the following:
There is no evidence before me that she had ever suffered any of these ailments.(CB 203.5)
Mr Zipser submits, however, that there was evidence by way of a letter of 14 July 2005, written by an inmate of the Villawood Immigration Detention Centre, which stated:
About two weeks after she joined us, I witnessed huge changes on her: her long time skin problem is nearly gone, her pain in the knees for several years has completely disappeared, the bent fingers which have been bothering her very much can now stretch at will, and she now almost doesn’t need the glasses that she must wear before.(CB 135.7)
Mr Zipser submits that the Tribunal decision indicates that it overlooked this part of the letter, ignored relevant material, and committed a jurisdictional error.
In support of this argument, Mr Zipser relies upon Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 at [16] and [23] per North, Madgwick and Kenny JJ:
16. In our opinion it is clear enough, for the following reasons, that the Tribunal Member did confine himself to considering whether he was affirmatively satisfied that the article indicated that State agents were pursuing the applicant for a Convention reason and, having answered that question negatively, did not go on to consider whether, in all the circumstances, there was a sufficient real and substantial chance that it did so indicate as to give rise to a well-founded fear of Convention persecution.
23. The point of these observations is not that, upon assessment, the Member lacked the freedom to determine that there was no real and substantial chance that the events described in the article had occurred or that, if there was such a chance, they nevertheless did not provide a sufficiently real and substantial basis for concluding that the applicant had a well-founded fear of political persecution. The point is that, if the Tribunal Member had really examined whether there was a real and substantial risk that the events recited in the article had occurred, one would have expected to see reference to such examination.
In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 17, McHugh, Gummow & Hayne JJ said:
It is not necessary to read s430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s430 as obliging the tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the tribunal. It ensures that the person who is dissatisfied with the result at which the tribunal has arrived can identify with certainty what reasons the tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s430 statement was not considered by the tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt8 of the Act, or by this court in proceedings brought under s75(v) of the Constitution. For example, it may reveal that the tribunal made some error of law of the kind mentioned in s476(1)(e) of the Act, such as incorrectly applying of the law to the facts found by the tribunal. It may reveal jurisdictional error. The tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took account some irrelevant consideration or did not take into account some relevant consideration.
Mr Zipser also relies on VAAD v Minister for Immigration [2005] FCAFC 177 at [77] per Hill, Sundberg and Stone JJ:
77. These comments make clear that whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In this case the Tribunal failed to consider a document, the UNP Letter, which was not only particular to the first appellant but arguably of critical importance to the claims of all the appellants. This is not a situation of the kind to which Mason J referred in Minister for Aboriginal Affairs v Peko–Wallsend Ltd (1986) 162 CLR 24 at 40, where the factor was so ‘insignificant that failure to take it into account could not have materially affected the decision’. The failure to do so led the Tribunal into error and that error had an adverse effect on the Tribunal’s assessment of the first appellant’s credibility. The Tribunal failed to have regard to material evidence and, as the Tribunal’s own comments show, that initial error was not corrected by the Tribunal’s subsequent consideration of the UNP Letter and the UNP Translation. On the contrary, the initial error tainted the later consideration of this evidence and compounded the Tribunal’s error. The Tribunal’s conclusion that the UNP Letter was fabricated was greatly influenced by the Tribunal’s mistake in thinking that the UNP Letter had not been provided to the Delegate or been sent to the Tribunal only after the Tribunal’s letter of 5 September 2001, the s 424A letter. The fact that, as originally provided, the UNP Letter was in Singhalese language and no translation was provided does not alter the fact that the Tribunal erred. Nor does it detract from the significance of the Tribunal’s error; see X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3 at [52]-[53].
Mr Carr noted that the Tribunal made a finding in respect of the applicant’s claim that she had been cured of a number of troubling and long standing aliments, inter alia, a skin condition and difficultly in straightening her fingers.(CB 203) Mr Carr submits that a careful reading of the relevant passage shows that after discounting the letters produced, the Tribunal turned to consider the “hard evidence”, in particular whether the applicant had consulted a doctor.(CB 203.5) The Tribunal found that she had consulted a doctor at Villawood Detention Centre and was prescribed ointment for the skin rash, but there was no further evidence regarding that consultation. Mr Carr contends that no jurisdictional error arises after an analysis of the passage relied upon by the applicant.
Mr Carr submits that even if there was an error as identified by
Mr Zipser, it does not amount to jurisdictional error. The applicant is required to demonstrate more than simply a factual error. Mr Carr submits that the Tribunal indicated that the letter carried no weight as indicated above and could not have materially affected the Tribunal’s decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [40]; VAAD.
Mr Carr then referred to the Tribunal’s findings and reasons:
Regarding the letters of support, I do not doubt the sincerity of the authors, but I am obliged to make up my own mind as to the genuineness of the applicant’s adoption of Falun Gong, as, even Ms Sun was only able to say that she felt sure of this point.(CB 203.2)
With specific reference to the applicant’s aliments, the Tribunal stated:
In the absence of much hard evidence, I have considered carefully the applicant’s recent history and claims. She claims that the recent practice of Falun Gong has cured several troubling and long-standing ailments – a skin condition, difficultly straightening her fingers, numbness in her arm on rising from bed and pain in her left knee. The problem with these claims is that there is no evidence before me that she ever suffered any of these ailments. I asked if she had consulted a doctor in Australia about them, but she had not, except in the Villawood IDC, in respect of her skin condition. However, I have no evidence before me regarding that consultation.(CB 203.5)
The Tribunal member acknowledged receipt of the first letter together with letters from two other individuals and the President of the Falun Dafa Association of New South Wales. The issues raised in the first letter, particularly about the recent cure of long standing ailments, was addressed and the reasons for its rejection are clearly set out in its reasons. The Tribunal based its decision on the credibility of the claims in the letter and gave it no weight. Accordingly, the argument that the claims in the letter were overlooked cannot be sustained.
The Tribunal is not required to refer to every piece of evidence from each individual source. The applicant’s ailments were raised elsewhere and were not unique to the first letter: WAEE v Minister for Immigration (2003) 75 ALD 630 at [46]. Similarly, the argument that s.430 of the Act was not complied with cannot be sustained, as the issue of the applicant’s ailments as raised by her and in the first letter was considered by the Tribunal. The reasons for its rejection are clearly stated in the Tribunal decision.
Conclusion
I am satisfied that second ground, being the only remaining ground pressed from the amended application, cannot be sustained. Consequently, the application 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 disbursement of and incidental to this application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 15 June 2007
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