SZHVS v Minister for Immigration
[2007] FMCA 1857
•29 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHVS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1857 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Migration Act 1958 (Cth) ss.91R(3); 424A; 474 |
| Applicant: | SZHVS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 731 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 29 October 2007 |
| Date of last submission: | 29 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2007 |
REPRESENTATION
| The Applicant appeared on her own behalf |
| Counsel for the Respondent: | Mr D. Godwin |
| Solicitors for the Respondent: | Ms T. Quinn, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 731 of 2007
| SZHVS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant claims to be entitled to a protection visa as a refugee from the People's Republic of China (“the PRC”) on the basis that she has a well-founded fear of persecution from the authorities in the PRC by reason of being a Falun Gung practitioner in the PRC. The Applicant arrived in Australia on 2 May 2005, having departed legally from Beijing Airport on a passport issued in her own name and a visitor's visa.
On 9 May 2005, the applicant lodged an application for a protection visa with the then Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). In support of that application, the Applicant provided a statement in which she claimed that both she and her husband were key members of the Falun Gung and had been detained by police in 1999 for four days and required to write reports. She stated that at the end of 2004 police came to there home to investigate them again. The Applicant claimed that she and her husband could only continue to practice Falun Gung in the PRC in secret.
On 2 June 2005, a delegate of the first respondent (“the Delegate”) refused the Applicant's application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 30 June 2005, the applicant lodged an application for review of that Delegate's decision, and on 28 October 2005 the Refugee Review Tribunal affirmed the delegate's decision. On 18 September 2006 the matter was remitted by consent by this Court to the Refugee Review Tribunal for determination according to law.
On 9 January 2007 the decision the subject of this review was signed, again affirming the decision of the Delegate to refuse the Applicant a protection visa. In its decision, the Tribunal identified the claims of the Applicant and reproduced the statement provided by her in support of her application for a protection visa. The Tribunal identified the matters it explored with the Applicant during the course of the proceeding and noted concerns about the Applicant's claims and evidence that it put to the Applicant, together with the Applicant's responses.
The Tribunal noted that the Applicant's claims were based on the Convention grounds of religion, imputed political opinion and membership of a particular social group ‑ namely, that she was a Falun Gung practitioner in the PRC who had participated in Falun Gung-related demonstrations in Beijing, as a result of which she claimed to have been arrested and mistreated.
The Tribunal accepted that the Applicant is a national of the PRC. However, the Tribunal found the Applicant not to be a credible or truthful witness.
In its decision, the Tribunal identified the reasons for that finding. They included that the Applicant was “vague and unable to provide any information beyond the most banal generalities with regard to Falun Gong”, and various inconsistencies between written claims made by the Applicant and her oral evidence.
Those inconsistencies were put to the Applicant in a letter pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”), in which the Tribunal identified the relevance of the inconsistencies in the evidence and informed her that it was relevant because it may cause the Tribunal to find that she had not been truthful or credible and that the Tribunal may not believe her claims to be true. That letter was sent to the Applicant at the address identified by her as a postal address in a change of contact details form signed and filed on 23 October 2006. The Applicant was invited to comment on the information by 2 January 2007, and was informed in that letter that if she did not provide comments by that date, the Tribunal may make a decision on the review without further notice. The Applicant failed to respond to that letter. The Tribunal found that:
“the totality of the Applicant's oral evidence shows a propensity to tailor and shift or evidence in a manner which achieves her own purpose”.
Ultimately, the Tribunal was not satisfied that the Applicant was a Falun Gung practitioner in the PRC or that she had been arrested and detained for that reason. The Tribunal was not satisfied that the authorities in the PRC had any interest in the Applicant by reason of her alleged Falun Gung activities. Further, the Tribunal was not satisfied that the Applicant had been harmed in the past in the PRC or that there was a real chance that she would be harmed for a Convention related reason if she were to return to the PRC or in the reasonably foreseeable future.
The Tribunal also noted oral evidence by the Applicant that she sometimes attended the Chinese Consulate in Australia. However, having regard to the Applicant's overall credibility, the Tribunal was not satisfied that the Applicant had participated in any Falun Gung related activities in Australia and that any conduct that she had engaged in was for the purposes of strengthening her claim to be a refugee within the meaning of the Convention and, therefore, any such conduct engaged in by the applicant in Australia was to be disregarded by the Tribunal pursuant to s.91R(3) of the Act.
The particular difficulties that the Tribunal had with the Applicant's evidence are accurately summarised in the written submissions of Counsel for the First Respondent at paragraph 10:
“The RRT found the applicant was not a reliable, credible or truthful witness. The reasons given for this conclusion were:
a. The applicant’s evidence was vague and she was unable to provide any information beyond the most banal generalities with regards to Falun Gong. The applicant did not demonstrate detailed knowledge of, and was unable to execute Falun Gong exercises. She was unable to provide a meaningful or persuasive account of why she had begun practicing Falun Gong or what Falun Gong meant to her. She had no knowledge on Falun Gong’s views on key concepts. Although she claimed her husband joined her as a practitioner, he failed to give evidence in support of her and the applicant failed to respond to the RRT’s opportunity to explain why this was so and why it should not be inferred that h is evidence would not support her claims (CB106).
b. There were material inconsistencies between the applicant’s written claims and her oral claims at hearing concerning her arrest and detention in 1999. These inconsistencies were the subject of the s424A invitation to which the applicant did not respond (CB106).
c. There were material inconsistencies between the applicant’s written claims to the department and her oral claims at hearing concerning her residential address in China, her educational qualifications, her employment history, and how she lost possession of her passport. These inconsistencies were also the subject of the s424A invitation to which the applicant did not respond. (CB107).
d. The applicant showed a propensity to tailor and shift her evidence in a manner which achieved her own purpose.”
On 10 January 2007, the First Respondent wrote to the Applicant inviting her to the handing down of the Tribunal decision on 30 January 2007. On 2 March 2007, the Applicant filed an application in this Court seeking judicial review of that decision. The First Respondent accepted the statement by the Applicant in that application that she had been notified of the Tribunal's decision on 8 February 2007. In those circumstances, the Applicant's application in this Court was filed within the required time frame of 28 days from actual notification to the applicant of the Tribunal's decision.
The Applicant attended a directions hearing before this Court on 22 March 2007, at which time she was given leave to file and serve an amended application and any evidence in support of her application by way of affidavit by 31 May 2007. On 31 May 2007, the Applicant filed an amended application identifying the following grounds:
“1. The Tribunal failed to understand the claims of my application and did not believe that I am a genuine Falun Gong practitioner based on assumption, The Tribunal failed to consider my application in accordance with s91R of the Migration Act.
2. The Tribunal did not refer to proper independent information for the consideration of my application. The Tribunal was lack of knowledge of China and wrongly believed that I would not be persecuted on my return to China. The Tribunal failed to assess the chance of my persecution on my return to China.”
The Applicant appeared before this Court this morning, and although she was unrepresented, she had the assistance of a Mandarin interpreter.
The Applicant confirmed that it was the grounds in the amended application upon which she relied. Those grounds were interpreted for the applicant, and she was invited to say whatever she wished in support. The Applicant had nothing meaningful to say in support of those grounds other than to say that the Tribunal could not understand her claims. However, the Applicant was unable to identify which of her claims the Tribunal was not able to understand.
In relation to Ground 2, the Applicant was asked by this Court what was the “proper independent information” that she contends that the Tribunal did not refer to. The Applicant confirmed that she provided no independent information herself to the Tribunal and made no meaningful response to the Court's inquiry as to the nature of that independent information.
The Court pointed out to the Applicant that her grounds were unparticularised, making it difficult for the Court to understand the error going to the Tribunal's jurisdiction. The grounds appear to be no more than a disagreement with the findings and conclusions of the Tribunal and, as such, appear to seek merits review, which this Court cannot provide. The Tribunal's rejection of the Applicant's claims was based on the Tribunal's adverse finding as to the Applicant's credibility. That finding was open to the Tribunal based on the evidence and material before it and for which it provided reasons.
The Tribunal identified with particularity the claims made by the Applicant and the discussions that it had with the Applicant during the course of the hearing about those claims. The Tribunal put to the Applicant its concerns about the credibility of those claims and the reasons for those concerns both at the hearing and in the Tribunal's letter dated 7 December 2006, in which those concerns were identified to the Applicant, their relevance explained and the Applicant invited to comment. In the circumstances, the Tribunal complied with its obligations under s.424A of the Act.
The Tribunal made its decision in accordance with the statutory regime, including the conduct of its review. The findings and conclusions it reached were open to it on the evidence and material before it and for which it gave reasons. The applicant has not identified any error before this Court going to the jurisdiction of the Tribunal.
In the circumstances, Grounds 1 and 2 of the Applicant's amended application are not made out. The Tribunal's decision is not affected by jurisdictional error, and is, therefore, a privative clause decision.
Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere with that decision, and the proceeding before this Court commenced by way of application filed on 2 March 2007 is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 5 November 2007
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