SZHNM v Minister for Immigration

Case •

[2006] FMCA 1205

•

25 July 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHNM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1205
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicants are citizens of The Peoples Republic of China – claiming fear of persecution  – Falun Gong practitioner – no jurisdictional error – credibility.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 474
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27
Applicant: SZHNM
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3254 of 2005
Judgment of: Scarlett FM
Hearing date: 25 July 2006
Date of Last Submission: 25 July 2006
Delivered at: Sydney
Delivered on: 25 July 2006

REPRESENTATION

The Applicant: Appeared in person
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 $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3254 of 2005

SZHNM

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 a review of a decision of the Refugee Review Tribunal.  The decision was made on 21st September 2005 and handed down on 13th October.  The Tribunal affirmed the decision of a Delegate of the Minister not to grant the applicant a protection visa. 

  2. The applicant is a citizen of the People’s Republic of China.  He arrived in Australia on 27th February 2005 and applied for a protection visa on 23rd March.  A Delegate of the Minister refused that application on 11th April 2005 and on 14th May the applicant sought a review of that decision from the Refugee Review Tribunal.  The applicant did not file any additional material with his application.

  3. The Tribunal wrote to the applicant on 29th July 2005 asking him to attend a hearing on Monday 19th September.  The applicant replied that he wished to attend and that he needed the assistance of a Mandarin interpreter.  The hearing took place on 19th September and the applicant gave evidence with the assistance of an interpreter in the Mandarin language.

  4. The applicant claimed that he had different political opinions from those of the Chinese authorities, especially in regard to the practice of Falun Gong.  The applicant said that he had become a practitioner in 1998 and had become addicted to the practice.  As a result he was obliged to hide his practise after it was banned in China.  The applicant claimed that he travelled to Beijing in a demonstration and not long afterwards he was detained by the police for approximately a month.

  5. During that time he said that he suffered both physically and mentally but was eventually released upon the payment of a bribe.  He also claimed that in the middle of 2004 the police came to his home and took his computer.  He said that he paid a large sum of money in order to obtain a passport and obtained a visa with the assistance of a friend.

  6. The applicant said that he had been detained on two occasions and on the second occasion was detained for between 10 and 20 days.  The Tribunal set out in its decision that it had a number of concerns about the claims made by the applicant.  The Tribunal’s finding and reasons are set out on pages 77 through to 79 of the Court Book.  It is relevant that the Tribunal considered that the applicant’s knowledge of facts relating to Falun Gong was incommensurate with his claims that he was a Falun Gong practitioner.

  7. The Tribunal set out a number of matters on pages 77 and 78 of the Court Book which indicated a lack of knowledge of some of the main tenets of the Falun Gong belief.  The Tribunal also noted that the applicant provided a vague response to the question about his claim that he had been involved in anti-government activities and the Tribunal, on the basis of the applicant’s evidence, rejected the applicant’s claims that he was ever a Falun Gong practitioner or that he was involved in any Falun Gong activities.

  8. The Tribunal did not accept that the applicant was ever detained or that the police took him in for questioning or that he suffered physically and mentally whilst being detained or that he had to pay a bribe to secure his release or that the police seized his computer and informed his company about what they had done or that he had to pay a large sum of money in order to obtain a passport.

  9. In particular the Tribunal did not accept that the applicant had shown different political opinions to those of the authorities.  At page 78 of the Court Book the Tribunal did not accept that the applicant had suffered any of the harm that he had claimed and indeed was satisfied that his claims had been fabricated in order to support an application for a protection visa.  This reflected adversely on the applicant’s credibility.

  10. The Tribunal was not therefore satisfied that the applicant had suffered any convention related harm nor was the Tribunal satisfied that there was any real chance of such harm occurring to the applicant in the reasonably foreseeable future.  Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the applicant a protection visa.

  11. The applicant commenced proceedings in this Court on 8th November 2005 seeking a review of the Tribunal’s decision.  In an amended application filed on 6th March 2006 the applicant seeks a writ of prohibition, a write of certiorari to quash the Tribunal’s decision and a writ of mandamus directed to the second respondent, the Tribunal, requiring it to hear and determine his claim for a protection visa according to law.

  12. The applicant claims that the Tribunal failed to carry out its statutory duty and alleges breach of s.424A of the Migration Act.  The applicant says that the only information before the Tribunal was that contained in the first respondent Minister’s file and that given to the Tribunal by the applicant.

  13. The applicant claims breach of the relevant section by not providing to him the particulars of the information that was the reason or part of the reason for affirming the Delegate’s decision and not explaining why that information was relevant and providing him with an opportunity to comment upon it.

  14. He referred to the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. He also referred to the decision of Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27 where he referred to information covered by s. 424A as including that given as part of the application for a protection visa.

  15. The applicant’s claim is that the Tribunal based its findings on information, or lack of information, contained in the applicant’s application for a visa and should, under s.424A have given particulars about information in accordance with the section. He submitted that the Tribunal’s failure to do so was a jurisdictional error. The applicant also claimed that:

    The Tribunal did not believe that I am a Falun Gong member based on the officer’s assumption, not actual evidence and material.

  16. The applicant at the hearing before me elected to rely on the written material.  The solicitors for the respondent Minister submit, and in my view correctly, that the Tribunal did not rely on any information provided by the applicant in his application for a protection visa in making its decision, rather the second respondent’s decision was based upon its dissatisfaction with the applicant’s answers provided to questions asked by the Tribunal at the hearing.  That evidence falls within the exception in sub-s.424A (3) (b) of the Act.

  17. The respondents also submit that the applicant’s allegation that the Tribunal made its decision on the basis of the Tribunal’s assumption rather than actual evidence and material was without merit.  The findings and reasons show that the Tribunal based its decision upon the applicant’s lack of knowledge, the facts pertaining to Falun Gong arising from responses by the applicant to questions asked by the Tribunal at the hearing.

  18. In my view, both of these contentions by the first respondent have been made out.  The findings and reasons of the Tribunal refer specifically to the applicant’s evidence given to the Tribunal and it is clear that the Tribunal formed an adverse opinion as to the applicant’s credibility.  The fact is that the Tribunal was not satisfied that the applicant’s answers showed that he knew sufficient information about the practice of Falun Gong which a Falun Gong practitioner would expect to know.

  19. The Tribunal just did not believe the applicant’s evidence.  There is no evidence before me that the Tribunal relied on any other information and there is no evidence that it relied on information in the application for a protection visa as the applicant alleges.  Also there is no evidence that the Tribunal’s disbelief of the applicant’s claim of being a member of Falun Gong was based on an assumption.   The findings and reasons make it quite clear that this finding was base squarely on the Tribunal’s dissatisfaction with the level of knowledge of Falun Gong shown by the applicant.

  20. The situation, in my view, is quite clear.  The applicant has not demonstrated any jurisdictional error.  I have read through the decision thoroughly myself, mindful of the fact that the applicant is not legally represented.  I am unable to discern any other jurisdictional error not referred to by the applicant.  In my view, this is a matter that relates entirely to adverse findings of credibility based on the applicant’s inability to satisfy the Tribunal in his evidence at the hearing that he was a Falun Gong practitioner.

  21. There is no reviewable error. The Tribunal’s decision is a privative clause decision as defined in s.474 of the Migration Act and as such it is not subject to any of the constitution writs of prohibition certiorari or mandamus. It follows that the application must be dismissed.


    I dismiss the application.

  22. The applicant has been wholly unsuccessful in his claim.  There is an application for costs on behalf of the first respondent Minister.  I see no reason why the Minister, who has been the successful party, should not be entitled to an order for costs.  The amount sought, namely $4,000.00, is to my mind a reasonable and appropriate figure.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  11 August 2006

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