SZIHP v Minister for Immigration
[2007] FMCA 959
•22 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIHP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 959 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3); 425; 474; 476; pt.8 div.2 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZIHP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG407 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 29 May 2007 |
| Date of last submission: | 29 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Mr B. Griffin, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG407 of 2006
| SZIHP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated
4 January 2006 and handed down on 24 January 2006 (“the Tribunal”).
The Applicant was born on 24 April 1962 and claims to be from the People’s Republic of China (“the PRC”) and of Han ethnicity and a Falun Dafa practitioner (“the Applicant”).
The Applicant arrived in Australia on 25 June 2006 having legally departed from Guangzhau Baiyun International Airport on a passport issued in his own name and a subclass 616 visa issued on 25 June 2005.
On 21 July 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution from the government for his practice and regional activities as a Falun Dafa practitioner. He claimed that since 1996 when he first began to practice Falun Dafa, he was tortured and forced to sign a “statement of resipiscence” in April 2000. Following his release the Applicant stated that he continued to practice in secret until 2004.
The Applicant claimed that in 2004 he distributed Falun Dafa materials printed from the internet, which resulted in his arrest and mistreatment by guards and other inmates. He claimed that his family bribed a senior official for the Applicant to be transferred and rescued, provided with an “unauthorised” passport and visa and placed on a train to Guangdong on 21 June 2005.
On 5 October 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 (“the Convention”).
On 3 November 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application and complained that the Delegate prejudged his application. He also complained of the difficulties in obtaining evidence from the PRC and his difficulty of presenting documents in a “favourable style” without a “legal professional”. On 4 January 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 9 February 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 17 November 2005 the Tribunal invited the Applicant to come to a hearing on 21 December 2005. The Applicant attended that hearing and gave oral evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
The Applicant gave oral evidence before the Tribunal in which the Applicant expanded upon his written claims and answered questions regarding his involvement in Falun Dafa in the PRC, including the acquisition of his passport. The Tribunal noted that it put to the Applicant that “independent country information makes it clear that passport applicant’s (sic) are thoroughly checked” The Tribunal also had regard to the fact that the Applicant’s passport was issued in his own name. The Tribunal had regard to independent country information in relation to the issuing of the passport and noted that it put to the Applicant that it was having difficulty accepting that he would have been issued with a passport in his name if he was a person of interest to the authorities. The Tribunal did not accept the explanations offered by the Applicant.
The Tribunal found the Applicant’s claims about being a Falun Dafa practitioner to be “very vague and general” and that his answers to questions at the hearing were “vague and evasive”.
Further, the Tribunal found the Applicant’s claims of being a regional leader and of Falun Dafa being his religion to be in conflict with independent country information, which the Tribunal found indicated that there is no Falun Gong organisation to join and it is not a religion.
The Tribunal further found that the Applicant had “embellished his claims for the purpose of enhancing his claims for a protection visa”.
The Tribunal wrote to the Applicant on 17 November 2005, inviting the Applicant to come to a hearing before it. In that letter the Tribunal informed the Applicant that it had considered the material before it in relation to the Applicant’s application but was unable to make a decision in his favour on that information alone. The letter went on, inter alia, to invite the Applicant to send to the Tribunal any new documents or written arguments he wished the Tribunal to consider.
The Tribunal also noted that the Applicant was unable to correctly demonstrate two of the Falun Dafa exercises when asked to do so.
Based on the material and evidence before it, the Tribunal found the Applicant not to be a credible witness and found that it was not satisfied that the Applicant is or ever was a Falun Dafa practitioner.
The Tribunal noted the Applicant’s claim that he would be persecuted were he to return to the PRC because he had revealed “the human rights condition inside China to outside authority” or because he had applied for a protection visa in Australia. The Tribunal rejected both those claims on the basis that the Applicant had been “involved in any protests or demonstrations for freedom of speech, workers rights, or religious freedom in either China or during his over 6 months in Australia.” Further, the Tribunal found that the Applicant had not experienced any difficulty in the past because of his religion, political opinions or imputed anti-government view. The Tribunal concluded that, having considered all the claims made by the Applicant individually and cumulatively, there was not a real chance he would experience serious harm amounting to persecution for a Convention reason on these or any other basis now or in the foreseeable future if he were to return to the PRC.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter. The Applicant confirmed that he relied on the amended application filed by him on 8 May 2006. The grounds of that application are as follows:
“1. DIMA and RRT did not give me enough time to collect evidences
2. The RRT and DIMA did not perform necessary procedure and give particulars of that information to me.
3. The Tribunal failed to carry out it’s statutory duty and review the Applicant’s application
4. The Tribunal’s decision was based on unwarranted assumptions and/or was based on reasoning which was irrational.”
Each of the grounds was read to the Applicant and he was invited to make submissions in respect of each of the grounds. The Applicant had nothing to say in respect of any of the grounds or in support of his application generally.
Ground 1 is unparticularised and meaningless in its terms. To the extent that it asserts an error on behalf of the Department, this Court has no jurisdiction to review any conduct of the Department (s.476 the Act).
To the extent that ground 1 alleges that the Applicant was not given enough time to collect evidence, I note that the Applicant’s application for a protection visa was lodged on 21 July 2005 and the Delegate’s decision made on 5 October 2005. The Applicant filed his application for review on 3 November 2005. On 17 November 2005, an invitation was sent to the Applicant inviting him to come to a hearing and to send the Tribunal any further documents he wished it to consider. On 21 December 2005, the tribunal wrote to the Applicant referring to his request that the Tribunal postpone his hearing. That request was agreed to and the Tribunal hearing was rescheduled for 3 January 2006.
On 4 January 2006, the Tribunal wrote to the Applicant inviting him to attend the handing down of the decision on 24 January 2006.
There is no evidence in the bundle of relevant documents marked exhibit 1R to suggest that there was any request made by the Applicant to obtain any specific documents. The reason for the Applicant’s request for a postponement was due to illness. To the extent that the Applicant said that he had difficulty in obtaining material from the PRC, the Tribunal noted that, beyond such a bare assertion, he did not elaborate on any of the difficulties he had in obtaining material, nor did he identify the nature of material that he had difficulty in obtaining.
Further, there is no evidence provided by the Applicant to this Court in respect of any material or evidence that he has now obtained that was unable to be provided to the Tribunal. Nor is there any evidence of any attempt to obtain any such material or to identify the nature of any such material.
Accordingly, ground 1 is rejected.
Ground 2 is unsupported by particulars and again discloses no error capable of judicial review. To the extent that it purports to contend that the Tribunal was required to give particulars of information to the Tribunal, there are no particulars of the information to which the Applicant refers. To the extent that ground 2 is seeking to allege a breach by the Tribunal of s.424A of the Act, there is no information to which the Tribunal had regard in affirming the decision under review that was information not otherwise provided by the Applicant or obtained from independent sources. Such information is excluded from the obligation of s.424A(1) of the Act by reason of s.424A(3) of the Act. The Tribunal’s adverse findings about the claims made by the Applicant, of a fear of persecution were open to it on the evidence and material before it and for which it provided reasons.
Accordingly, ground 2 is rejected.
Ground 3 alleges that the Tribunal failed to carry out its statutory duty. Again there are no particulars identifying in what manner the Tribunal is alleged to have failed to carry out its statutory duty.
The Tribunal wrote to the Applicant in accordance with s.425 of the Act inviting the Applicant to come to a hearing which the Applicant ultimately attended. The Tribunal granted the Applicant his request to postpone the hearing because the Applicant said he was ill.
The Tribunal otherwise made its decision in accordance with the statutory regime imposed upon it, including the conduct of its review.
Accordingly, ground 3 is rejected.
Ground 4 is again unparticularised. In the circumstances, I understand ground 4 to be no more than a disagreement by the Applicant with the findings and conclusions made by the Tribunal. This Court cannot conduct a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
As referred to above in these Reasons, the findings and conclusions made and reached by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. Implicit in that finding by this Court, is a rejection of any contention that any such reasoning by the Tribunal was irrational.
Accordingly, ground 4 is rejected.
Conclusion
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.
The proceeding before this Court, commenced by application filed 9 February 2006, is dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 20 June 2007
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