SZHMV v Minister for Immigration
[2006] FMCA 553
•5 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHMV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 553 |
| MIGRATION – Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 483A |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 SZEEU v Minister for Immigration [2006] FCAFC 2 |
| Applicant: | SZHMV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3227 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 12 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2006 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the First Respondent: | Ms R Pepper |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The application 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 |
SYG3227 of 2005
| SZHMV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 4 November 2005, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 27 October 2005, affirming a decision of the delegate of the first respondent made on 10 August 2005, refusing to grant the applicant a Protection (Class XA) visa (Court Book (“CB”) 58). The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZHMV”.
The applicant has not sought to join the Tribunal as a party, however given that 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 (“SAAP”) at [43], [91], [153] and [180].
Background
The following background information is contained in the Tribunal decision of Ms Pauline Pope, reference number: NO5/51897. The applicant, who claims to be a citizen of The People’s Republic of China, arrived in Australia on 26 May 2001. On 4 August 2005, she lodged an application for a Protection (Class XA) visa under the Act with the Department of Immigration. On 10 August 2005, a delegate of the Minister refused to grant a protection visa and on 12 August 2005, the applicant applied to the Tribunal for review of the delegate’s decision (Court Book (“CB”) 58).
The applicant told the Tribunal that she came to Australia in May 2001 to study English and then attended Year 12. During that time her student visa was cancelled because she was unable to pay her fees. The applicant claims she had lent $6,000 to a friend who needed money for a visa. As the friend was unable to repay the money, the applicant lacked the funds to pay her own fees. As a result, she did not attend classes and her visa was eventually cancelled (CB 61).
The applicant claims persecution on the grounds of religious belief, because of the Falun Gong practice of her parents, which resulted in persecutory treatment by Chinese authorities. She would be persecuted because of her own practice of Falun Gong if she returned to China. The applicant’s claims are set out in a statement accompanying her visa application at CB 13 and 28. The applicant told the Tribunal that in December 2001, the police came to her family home and took her father away for four months. In July 2005 they forcibly removed her father again upon discovery of Falun Gong materials. However, he escaped and both her parents went into hiding in Yuhong. The applicant further claims that she was introduced to Falun Gong in 2000 and she now practises in Sydney (first respondent’s submissions, paragraph 3-5).
The tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons were contained in the first respondent’s written submissions prepared by Ms Pepper and I adopt paragraphs 6 to 8 of those submissions:
6.The applicant applied to the Tribunal for review of the delegate's decision on 11 August 2005 (CB 43-46). The Tribunal was not satisfied, on the evidence before it, that the applicant had a well founded fear of persecution for a Convention reason. This was because the Tribunal did not find the applicant to be a credible witness (CB 68.5). This was so notwithstanding that the Tribunal accepted that the applicant had demonstrated some knowledge of the exercise regime and some familiarity with the teachings of Falun Gong (CB 69.2).
7.However, on the basis of her oral evidence, the Tribunal:
(a) Rejected the claim by the applicant that she was a genuine Falun Gong practitioner and did not accept that she practiced regularly or that she had been involved In proselytising on behalf of the movement. Thus the Tribunal concluded that the applicant had fabricated this claim in order to enhance her claim for refugee status (CB 69.6);
(b) Found that she would not practice Falun Gong on her return to China and that there was no real chance that she would suffer serious harm amounting to persecution in China for this reason (CB 69.6);
(c) Found that the applicant's recent claims with respect to what had occurred to her parents were implausible (013 70.4). In this regard the Tribunal noted that the applicant's visit to China in February 2002 coincided with the claimed detention of her father for several months from December 2001 (CB 70.9). In such circumstances, it would be unlikely that the applicant would not have been cautioned by her mother against returning (CB 70.10), Accordingly the Tribunal did not accept that the applicant's father had been detained in 2001;
(d) Also found as implausible her father's alleged detention and escape in July 2005 (CB 71.1). This was because if it occurred for the reasons given, then it would have been unlikely that the authorities would not have also detained her mother (CB 71.2). The Tribunal further thought it unlikely that her mother would have been able to return to the family home to check upon her grandparents if the police had the house under constant surveillance (CB 71.5);
(e) Finally, It rejected the claim by the applicant that her mother was taken away by police on 11 August 2005 and that her whereabouts were unknown.
8.Thus the Tribunal did not accept the claim that the applicant's parents were Falun Gong practitioners and did not accept the applicant's claimed fear on this basis.
Application for review of the tribunal’s decision
On 4 November 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following ground:
If I returns to China I will face persecution because my parents are Falun Gong Practitioners. My father was detained for four months. My mother was taken away and on-one knows where she is. Now I am is detention centre Villawood. I can do nothing. If I return to China I must be died. Now, The Tribunal affirms the decision not to grant a protection visa. I dissagree this decision. Something wrong in legal procedure. So I apply for Federal Court. The Tribunal doesn’t accept that my parents and me are Falun Gong practitioners. They don’t any evidence. Now, my family have big trouble. That’s not enough? Must be dead someone! (copied without alteration or correction)
Reasons
The applicant appeared as a self-represented litigant with the aid of a Mandarin interpreter. The applicant attended first directions on 6 December 2005, where she indicated that she wished to participate in the Court’s panel legal advice scheme. Orders were made granting her leave to file an amended application by 24 February 2006, with any affidavit material that she wished to have considered in support of her application. Neither of these orders were complied with. When the applicant was invited to make oral submissions in support of her application, she indicated that because of her lack of understanding of the English language and how the legal system operated, she was unsure of what was expected of her in respect of submissions, and, more generally, what she was expected to present to the Court.
Where an applicant is self-represented in Court, their application must be independently considered to assess whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. When I enquired of the applicant whether she had received legal advice from the panel adviser, she confirmed that she had met with him/her at Villawood Detention Centre and discussed her case. She told the Court that she had wanted the adviser to represent her at the final hearing, but he/she declined that brief. The applicant complained that because she was unrepresented and had received no assistance in the preparation for the hearing, she was not in a position to submit any material to the Court.
Ms Pepper, counsel for the first respondent, directed my attention to the original visa application. The migration agent details had been completed by a member of the Legal Aid Commission who had confirmed that they would act as the applicant’s agent and receive all written communications in respect of the application. The delegate’s decision was forwarded to the nominated agent. Section C of the application form for review of the delegate’s decision confirmed that the same adviser was nominated on that application (CB 44). Although the original form had not been signed by that representative, this was completed at a later date and returned to the Tribunal on 16 August 2005 (CB 50). That adviser completed the response to hearing invitation form and forwarded that to the Tribunal (CB 54). It is noted that that adviser did not attend the Tribunal hearing held on 8 September 2005 (CB 55). The Tribunal decision was forwarded to the adviser by letter on 28 October 2005. The application for judicial review of the Tribunal decision was signed by the applicant on
2 November and filed in the Court registry on 4 November 2005. There is no indication whether the applicant received any assistance in the preparation of that document, whether by the adviser or any other party.
Ms Pepper submits that the application for review does not plead any grounds impinging on the Tribunal decision. It was submitted that the applicant is attempting to take issue with the factual findings of the Tribunal. I accept Ms Pepper's submissions that to review the decision of the Tribunal on these grounds would amount to the Court engaging in a merits review, especially given that there is no evidence the Tribunal did anything other than exercise its power in a bona fide way: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272. It was submitted that the Tribunal weighed up the evidence of the applicant and made findings of fact that were open to it on the material before it. It was entitled to do so in the circumstances: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558 to 559.
I believe it is necessary to consider the recent decisions of SAAP v Minister for Immigration and SZEEU v Minister for Immigration [2006] FCAFC 2 to determine whether either decision has an impact on the present proceedings. The Tribunal member acknowledged that the applicant “gave evidence” to the Tribunal in a forthright and confident manner, but it had concerns about the credibility of the material aspects of her claim. The Tribunal decision contains a considerable amount of detail of the applicant’s oral submissions at the hearing. A review of the decision indicates that all the material considered by the Tribunal was provided to it orally during the hearing. The only other material it referred to was independent country information, which was identified, the key elements of which are reproduced in the decision record. This material falls within the exception in s.424A(3)(b) of the Act. A review of the delegate’s decision indicates that none of this material is referred to in the Tribunal decision other than a reference to the existence of the department’s file. More importantly, none of the material is referred to under the heading “Findings and reasons” of the decision. I accept Ms Pepper’s submissions, that the Tribunal relied on the oral testament of the applicant at its hearing to assess her claim. There is no evidence of any breach of s.424A as considered in SAAP v Minister for Immigration and SZEEU v Minister for Immigration.
In order to fulfil my obligations as set out in Yo Han Chung v University of Sydney & Ors, I have reviewed all the material available to me, which in effect is limited to the contents of the Court Book. On a fair reading of that material, and in particular the Tribunal decision, I am satisfied that on the face of the decision, it is not apparent that any jurisdictional error has been made. The applicant has not, in her original application or any submissions made to the Court, been able to identify any area of the Tribunal decision that contains an error that could be considered a jurisdictional one. The applicant only takes issue with the factual findings of the Tribunal.
Conclusion
I have not been able to identify that the Tribunal has committed a jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 1 May 2006
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