SZHRK v Minister for Immigration
[2006] FMCA 1313
•24 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHRK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1313 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of The People's Republic of China – applicant claims to be a Falun Gong practitioner – no jurisdictional error. |
| Judiciary Act 1903 (Cth) Migration Act 1958 (Cth), ss.422B, 424A, 474(2) |
| SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 2 |
| Applicant: | SZHRK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3469 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 August 2006 |
| Date of Last Submission: | 24 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mrs Kaur-Bains |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00 and I allow (6) six months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3469 of 2005
| SZHRK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refuge Review Tribunal. The decision was signed on 14th October and handed down on 3rd November 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant seeks a review of that decision including an order to set aside the Tribunal's decision, an order in the nature of mandamus remitting the application to the Refuge Review Tribunal, and an order for costs.
The applicant is a citizen of The People's Republic of China, who arrived in Australia on 13th March 2005 and, despite what the Tribunal decision says on page 63 of the Court book, applied for a protection (class XA) visa on 17th March. A delegate of the Minister refused the application on 20th April 2005.
On 23rd May of that year, the applicant sought a review of that decision from the Refuge Review Tribunal. When she lodged her application, the accompanied it with a statement occupying about half a page.
In the statement she said that she was a genuine Falun Dafa practitioner and had experienced a terrible ordeal in her home country. In 1999 Falun Gong was officially recognised as an illegal organisation.
The applicant said that she had been summonsed from the local Chinese Court and local police station. She claimed that almost everywhere Falun Dafa members and people in charge were under strict surveillance. She said:
I was ever detained in Tianjin Police Station for two months.
The applicant said that she had no option but to leave the country.
The Tribunal wrote to the applicant and invited her to attend a hearing. The applicant attended a hearing and gave oral evidence on
Friday, 16th September 2005. She told the Tribunal that she had attended Falun Gong organised political activities in Canberra and in Sydney.
The Tribunal set out details of the evidence, which appeared on pages 66 through to 68 of the Court book. The Tribunal recorded at page 66 how the Tribunal member asked the applicant a number of basic questions about the philosophy of Falun Gong and the exercises required of its adherence. The Tribunal records that the applicant did not answer correctly. The Tribunal asked the applicant to demonstrate a number of basic Falun Gong exercise positions. The Tribunal said:
Apart from clasping her hands which was the most rudimentary position she failed to demonstrate any of the others correctly.
The Tribunal asked the applicant a number of other questions about her situation in China and about how she was able to obtain a valid passport and about details of how she left China legally with a passport and visa. The applicant said that she had left Tianjin and travelled to Beijing to obtain her visa and the local police would not have known. The Tribunal noted that the applicant claimed that she had been interrogated by police and had been beaten and had developed a cyst on her forehead as a result.
The Tribunal noted on page 68 that the applicant that said she wanted more time in Australia and needed a visa so that she could earn money to pay off the loans she had effectively incurred to come to Australia. The Tribunal also asked the applicant whether she had any documentary evidence to support her claims. The Tribunal said:
She replied that it may be possible to obtain a receipt for the RMB3000 paid to the police to obtain her release. The Tribunal asked her to forward this document to the Tribunal if it became available. The receipt was not received by the Tribunal.
The Tribunal set out its findings and reasons which appear on pages 68 through to 70 of the Court book. The Tribunal accepted that the applicant is a citizen of The People's Republic of China. The Tribunal was not satisfied that the applicant met the definition of a "refugee" under article 1A (2) of the Refugees Convention. The Tribunal set out a number of reasons on pages 68 through to 70 inclusive, they included:
The applicant's basic lack of knowledge of Falun Dafa philosophy and her inability to perform the mandatory exercises. The applicant originally claimed in her written statement that she was detained for two months because of her interest in Falun Gong. When asked by the Tribunal to confirm this, the applicant replied that she had been in detention for only two days. In view of her inconsistent evidence the Tribunal was not convinced that the applicant spent any time in detention for her alleged Falun Gong beliefs or sympathies. The applicant claimed that a cyst on her forehead was the result of police brutality alleged to have occurred three and a-half years before the applicant left China. The Tribunal said that the delay was not consistent with a person wishing to escape further persecution nor was the Tribunal shown any medical evidence in support of the applicant's claim.
The Tribunal noted that the applicant said that she had no difficulty obtaining a valid passport and visa in her own name despite her claimed detention. The Tribunal also noted that the applicant said she travelled to Beijing to obtain her travel documents because she did not want the local police to find out but that was inconsistent with her evidence that she was required to report to the police weekly and that they kept her under surveillance. The Tribunal noted that for over five months following her arrival in Australia the applicant did not according to her evidence take the opportunity to join a Falun Gong exercise group. The Tribunal further noted that the applicant's only Falun Gong related activities in Australia were her claimed attendance to political rallies in Canberra and Sydney.
The Tribunal noted that the applicant was unable to provide even an approximate date as to when she claimed to have joined Falun Gong. The Tribunal was not satisfied about the applicant's statement about her criminal record. The Tribunal was not convinced that applicant was a genuine Falun Gong adherent in view of her failure to join Falun Gong while in Australia nor is the Tribunal convinced that she would do so on her return to China. The Tribunal was not satisfied that there was a real chance that on her return to China the applicant would face a risk of serious harm or mistreatment in terms of the Convention and was not satisfied the applicant had a well founded fear of persecution either at the time of the hearing or in the foreseeable future.
For those reasons the Tribunal affirmed the decision not to grant a protection visa.
The applicant filed her application to this Court on
28th November 2005. She alleges that the Tribunal failed to comply with its obligation pursuant to the Migration Act 1958 and denied her procedural fairness. She sets out three grounds, or particulars of those grounds. The first ground relates to a challenge to the Tribunal's finding that because the applicant could not remember some dates that the Tribunal's said that she was attending certain demonstrations that the Tribunal was not convinced that she attended those demonstrations. The applicant says that:
memories are different from person to person and often the dates can not be remembered. That happened last month.
This is no more than a challenge to the factual findings made by the Tribunal and it is not a function of the Court to conduct merits review. Whilst the applicant argues that the Tribunal ought to have arrived at a different conclusion, there is no legal error disclosed.
Particular (b) again is a challenge to the Tribunal's finding about the cyst on her forehead and about the three and a-half years that elapsed between when this brutality by the police was said to occur and the applicant left China for Australia. The Tribunal was of the view that the applicant had shown a considerable amount of delay which was inconsistent with someone seeking refugee status. The applicant challenges this, but this is no more than a request that a different finding of fact could be reached and, as I indicated earlier, merits review is not permitted in Courts conducting judicial review.
The third particular relates to a challenge to the Tribunal's conclusion that the applicant did not attend certain Falun Gong activities for over five months. The applicant says that her evidence was that she attended the rallies in a park near Central Railway Station and outside the Chinese Embassy in Canberra in around June of the year that the applicant arrived in Australia, namely 2005.
The first point to be made is that what the Tribunal actually found, and is set out on page 69 of the Court book:
The Tribunal noted that for over five months following her arrival in Australia the applicant did not according to her evidence take the opportunity to join a Falun Gong exercise group which she could have easily done if she were genuinely interested as she claimed in Falun Gong.
The reference to "five months" by the Tribunal is not a reference to the applicant's claim that she attended any rallies or demonstrations.
The Tribunal was also not convinced that the applicant had attended those rallies.
Those are findings of fact. Findings of fact remain the province of the administrative decision maker and so long as there is evidence upon which a finding of fact can be based, there is no jurisdictional error.
It is no part of the function of a Court conducting judicial review to re‑examine the facts and draw its own conclusions from the facts. Merits review is not a part of judicial review.
It is pointed out by counsel for the respondent, and correctly in my view, this is a matter to which s.422B of the Migration Act applies. Unless an obligation arises under s.424A of the Migration Act to give the applicant notice of any adverse information, the Tribunal is not under any obligation to raise the matter with the applicant.
In my view, there is no s.424A obligation that the Tribunal can be said to have breached. The Tribunal decided the case on the basis of the applicant's evidence to the Tribunal which included the oral evidence and also the statement that the applicant provided to the Tribunal when she submitted her application for review.
The information from which the Tribunal drew findings of inconsistency was all information given by the applicant to the Tribunal. This material is covered by sub-s.424A(3)(b) of the Migration Act and there is no obligation under s.424A(1) of the Act and I am referred to the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 2, particularly at paragraphs [51] to [52] and [245].
In my view, no jurisdictional error has been made out. I am mindful of the fact that the applicant is not legally represented. It is clear from the Court file that the applicant did take advantage of the scheme for legal advice provided by the Refuge Review Tribunal. The Court file indicates that the applicant received advice from Mr Ray Turner, Solicitor, who practises extensively in this jurisdiction. Nevertheless, she was not legally represented at the hearing.
I have read through the decision thoroughly myself in order to ascertain whether any arguable case of a jurisdictional error can be made that has not been referred to by the applicant. I cannot see any. As there is no jurisdictional error, it appears to me that the Tribunal decision is a privative clause decision as defined under s.474(2) of the Migration Act. That being the case, unless there is jurisdictional error no orders in the nature of certiorari or mandamus will lie.
I note that the applicant seeks a costs order, but as she was not legally represented; has received legal advice free of charge; and her filing fee was waived, even if she were successful it does not appear to me that she has made out any claim for costs.
In any event, as there is no jurisdictional error, the application will be dismissed.
The Refuge Review Tribunal legal advice scheme does not provide a free lawyer to defend the case, only to provide legal advice. There is no right to free legal representation before the Court. I note that the applicant cannot afford the amount of $5,100.00 claimed for costs by the Minister.
There is an application for costs on behalf of the first respondent Minister against the applicant in the sum of $5,100.00 inclusive of counsel's fees. The matter is one where the application was filed prior to 1st December 2005. I am told that the figure is as high as it is because the decision required an extensive analysis in order to see if there was any s.424A problem. I would not have thought that such an analysis was going to be particularly lengthy.
The matter was first before the Court on 22nd December 2005 and then again on 17th March. The applicant says that she cannot afford the figure of $5,100.00 and indeed complains that the decision is not fair. She believes that the decision is not fair. She does, of course, have the right of appeal.
In my view, the applicant has been wholly unsuccessful in her claim and the fact that the applicant cannot afford the costs sought is not of itself a reason for not making a costs order in favour of a successful party. I propose to order that the applicant pay the first respondent's costs.
The applicant's financial situation is a matter that can be taken into account as far as time to pay is concerned. As to the quantum of costs, I note that there have been two appearances before a Registrar before the matter was listed for final hearing before me. The extensive analysis of the Tribunal decision does not appear to me to have required an inordinate amount of time. In my view, I consider that the sum of $5,000.00 is appropriate figure. So I will reduce the amount of costs sought to $5,000.00. I will allow six months to pay those costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 1 September 2006
0