SZHMJ v Minister for Immigration

Case •

[2006] FMCA 1439

•

13 September 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHMJ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1439
MIGRATION – Visa – protection visa – application for review of RRT decision affirming decision of a delegate of the Minister no to grant a protection visa – applicant is a citizen of the People's Republic of China – applicant claims fear of persecution because he claims to be a Falun Gong practitioner – privative clause – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 474
Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27
Minister for Immigration & Multicultural Affairs v SBAN [2002] FCAFC 431
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZECI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1201
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Yo Han Chung v University of Sydney [2002] FCA 186
Applicant: SZHMJ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3175 of 2005
Judgment of: Scarlett FM
Hearing date: 13 September 2006
Date of Last Submission: 13 September 2006
Delivered at: Sydney
Delivered on: 13 September 2006

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondents: Ms Clegg
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

  2. The application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,800.00 and I allow (8) eight months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3175 of 2005

SZHMJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made exactly a year ago on 13th September 2005 and handed down on 4th October 2005.  The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.  By his amended application the applicant seeks writs of prohibition, certiorari, and mandamus.

  2. The applicant is a citizen of the People's Republic of China who arrived in Australia on 29th January 2005.  On 23rd February he applied for a protection (class XA) visa but it was refused on 24th March.  On 27th April 2005 the applicant applied to the Refugee Review Tribunal for a review of that decision.  He did not provide any additional information to the Tribunal with his application.

  3. The Tribunal wrote to the applicant under the provisions of s.425 of the Migration Act inviting him to attend a hearing to give oral evidence and present arguments on Wednesday, 10th August 2005.  The applicant attended the Tribunal on that day and gave evidence with the assistance of a Mandarin interpreter.

  4. I note that on page 72 of the Court book the Tribunal decision refers mistakenly to the applicant attending a Tribunal hearing on 10th July 2005.  It is clear however that the correct date was 10th August, and that is set out on page 71 of the Court book.

  5. The applicant told the Tribunal of his claim for a protection visa based on his association with Falun Gong in China.  He told the Tribunal that he had participated in some activities and indeed in his capacity a driver he drove Falun Gong practitioners to various demonstrations.

  6. He said that in October 2000 members of the Public Security Bureau came to his workplace and arrested and detained a large number of people.  He was detained for four days, but others were detained for some months.  He told the Tribunal that in 2001 his employer persuaded him and two other practitioners to accept redundancies.

  7. The Tribunal recorded that the applicant was asked about his knowledge of Falun Gong and the applicant said that there were five exercises, but he had not learnt them all, he named two of them.  The Tribunal asked him other general questions about Falun Gong.

  8. The Tribunal's findings and reasons are set out on pages 75 through to 77 of the Court book.  The Tribunal accepted that the applicant has nationality of the People's Republic of China, having observed his passport.  The Tribunal noted the applicant's claims but found that the applicant's knowledge of Falun Gong was scant.  Specifically, the Tribunal found, and it is set out at page 76 of the Court book, that the applicant's knowledge of Falun Gong was inconsistent with his claim to have a genuine interest in and commitment to the movement.

  9. The applicant's account of past harm in China contained no elements which by their very nature supported his assertions to have been subject to adverse attention because of his links with Falun Gong.

  10. The Tribunal further noted that the applicant had not adequately explained the delay of several years after his detention for four days and his forced redundancy.  Finally, the Tribunal noted that the applicant's conduct in Australia did not lend any weight to his claim to be a genuine Falun Gong practitioner.  The Tribunal noted that the applicant had not established contact with Falun Gong practitioners in this country.

  11. On the basis of that evidence, the Tribunal found that the applicant was not a genuine Falun Gong practitioner, and would not be perceived as such by the authorities or anyone else in the People's Republic of China.  Whilst the Tribunal accepted that the applicant's employer, a state-owned enterprise, had put him onto casual employment, the Tribunal was not satisfied that that was linked with his practice of Falun Gong.

  12. The Tribunal was not satisfied that the mere fact of being given casual employment amounted to persecutory harm, or that it was related to the Refugee's Convention.  The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention and affirmed the decision not to grant a protection visa.

  13. The applicant commenced proceedings for review in this Court by means of an application filed on 31st October 2005.  He filed an amended application on 23rd March 2006. His amended application claims that the Tribunal failed to carry out its statutory duty by failing to comply with the provisions of s.424A of the Migration Act. The applicant refers to the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. The applicant also refers to the decision in Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27.

  14. The applicant made oral submissions to the Court today.  He said that he had not gone through the exercises involved in the practice of Falun Gong systematically, which was why he was unable to explain them or demonstrate them all at the Tribunal hearing.  He said that he was involved as a driver and he would pick up Falun Gong practitioners and take them where they wanted to go.  The applicant told the Court that he thought he had explained his case very clearly to the Tribunal and had told the truth.

  15. He told the Court how he had been earning good money working for the China Petrochemical Plant and had worked as a driver for a number of years.  He was a very competent driver and had driven 40 tonne trucks.  He told the Court that because of his involvement with Falun Gong he was forced to sign what appeared to be a redundancy agreement.  He tried to get on with his life but found it was almost impossible to obtain other employment because everyone knew that he was a Falun Gong practitioner.

  16. He told the Court that he thought that the Tribunal decision was unfair; he said that he was scared when he went to the Tribunal, and the Tribunal conducted its proceedings by asking a question and requiring him to answer.  He said that the Tribunal asked questions in a stern manner, but corrected that in his submissions in reply to say that the tone of the questions was stiff rather than stern.

  17. The applicant complained that the Tribunal member had from time to time interrupted him and that this was apparent from the tape of the proceedings.  The applicant did not produce a transcript of the Tribunal proceedings.

  18. For the respondent Minister, Ms Clegg of counsel not only relied upon her written submissions, but told the Court that it was the view of the respondent that the application lacked merit, the applicant's oral submissions to the Court were largely a challenge to the Tribunal's factual findings, and that he had not demonstrated a legal error on the part of the Tribunal.  Indeed, she submitted the applicant was essentially attempting to re-argue his Tribunal case.

  19. It was conceded on behalf of the first respondent that unfairness in the sense of lack of procedural fairness on the part of the Tribunal may constitute a jurisdictional error.  Her submission was that even taken at its highest the applicant's claims did not amount to a breach of procedural fairness.  Even if the Tribunal asked questions in a stern tone, or if the applicant were interrupted, or that the proceedings were conducted by means of question and answer, this would not necessarily amount to procedural unfairness.

  20. In any event, there was no evidentiary basis for procedural unfairness.  The applicant had not provided a transcript of the proceedings, and therefore could not demonstrate any procedural unfairness.

  21. The written submissions on behalf of the respondent submit that the first two grounds in the initial application for review essentially sought to revisit the merits of the case, whilst the third ground made an allegation of bias, which clearly had no basis and should not have been made.

  22. The amended application, she submitted, asserted the one ground of review, failure to carry out a statutory duty, and the particulars supporting the ground were largely in the nature of submissions, were formulaic and not specifically addressed to the particular facts of the applicant's case or the Tribunal's decision.

  23. The submission is that a breach of s.424A(1) of the Act could not be made out because the information contained in the protection visa application was not information provided by the applicant for the purpose of review, but the Tribunal did not rely on that information to arrive at the decision. I refer to SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2.

  24. The respondent submitted that the Tribunal was not satisfied that the applicant was a refugee, based on the Tribunal's lack of satisfaction and an absence of satisfactory detail, information or explanation by the applicant.  It was submitted that it was the absence of information of any specificity or persuasive character that could be said to be the reason for the decision, and I refer to SZECI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1201, being a decision of Alsop J at [24].

  25. Whilst it is also a fact that the applicant's departure date from China is referred to in the findings and reasons, that information could have been obtained from the applicant's passport, which was provided with a protection visa application, but that passport was also given to the Tribunal for the purpose of the review by the applicant, and therefore any reliance upon that information would fall within the exception contained in s.424A(3)(b).

  26. The applicant's claim of a breach of s.424A of the Migration Act refers to the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (supra).  It is well established that such a breach constitutes jurisdictional error. My reading however of the findings and reasons does not show that the Tribunal relied on information, other than that given by the applicant for the purposes of the review.  The essential reason for the Tribunal's decision was the Tribunal's dissatisfaction with the content of the applicant's evidence.  The Tribunal was not satisfied that the applicant showed the knowledge that the Tribunal would expect a Falun Gong practitioner to have.

  27. The applicant has sought to challenge the Tribunal's factual findings; this attempt at merits review is not available in judicial review proceedings before the Court.  So long as there is evidence upon which the Tribunal can base its factual findings, then there is no jurisdictional error.  The evidence upon which the Tribunal based its factual findings came from the applicant.  The Tribunal was not satisfied with the applicant's evidence.  As to the date of the applicant's departure from China, that could clearly be gleaned from the applicant's passport, which was provided for the purposes of review.

  28. The reference by the applicant to the decision in Minister for Immigration & Multicultural Affairs v Al Shamry (supra) does not assist the applicant because that decision referred to information given by the applicant to the Minister as part of his application for a protection visa.  It is quite clear that the Tribunal did not refer to any information given by the applicant to the Minister as part of his application for a protection visa.

  29. As to the applicant's complaint about the tone in which the Tribunal addressed questions to the applicant, which he submitted was in a stiff tone and involved questions and answers and some interruptions, in certain circumstances it would be possible to find some evidence of bias on the part of a Tribunal member.  There is however no evidence of any bias.  This question was considered by the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v SBAN [2002] FCAFC 431 at [11] in the joint judgment of Heerey Keifel JJ. Their Honours pointed out this important fact about Tribunal hearings:

    In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted (see s. 425(2)(a)) therefore the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT.  It is in the nature of things that this may vary in degree and could amount in some cases to suspicion or even strong suspicion.  The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing does not of itself suggest actual bias in the relevant sense.

  30. In my view, there is no evidence upon which it can be inferred that the Tribunal member conducted the hearing in any untoward manner.  I am of course aware of the fact that the applicant is not legally represented in these proceedings.  He did seek to avail himself of the legal advice available through the Refugee Review Tribunal legal advice panel, and I note that from the Court file he was referred to Ms Hoeben of counsel on 27th February 2006.

  31. The Applicant is not legally represented today and as has been set out in Yo Han Chung v University of Sydney [2002] FCA 186 [31] to [34], where an applicant is unrepresented the Court is required not only to consider the arguments put by the applicant but also independently consider whether an arguable case based on the material could be made out. I have conducted an independent consideration of the material.
    I am not satisfied that any arguable case on behalf of the applicant can be made out.  In my view, no jurisdictional error has been established.

  32. As there is no jurisdictional error, the decision is a privative clause decision, as defined in sub-s.474(2) of the Migration Act. Accordingly, the decision is not subject to the writs of prohibition, mandamus and certiorari that the applicant seeks. The application will be dismissed.

  33. There is an application for costs on behalf of the first respondent Minister.  Costs usually follow the event and there is no reason why the first respondent should not be entitled to a costs order in these proceedings.  The applicant indicates an inability to pay that as he is not working due to an injury to his hand sustained on 25th April 2005.  That is not a matter that I will take into account in respect of whether or not costs should be awarded, I will consider it on the basis of time to pay.

  34. In my view, this is a suitable matter for a costs order to be made on behalf of the first respondent Minister against the applicant. 
    The amount sought is $3,800.00, and that is inclusive of counsel's fees.  This is an application that was commenced prior to 1st December 2005.  In my view, the amount sought is an appropriate sum, and I propose to make an order for costs in that amount.  I will however, allow time to pay.

  35. I note also that the title of the Minister for Immigration and Multicultural Affairs has changed to that, and it is no longer the Minister for Immigration and Multicultural and Indigenous Affairs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  22 September 2006

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