SZIOA v Minister for Immigration
[2006] FMCA 950
•22 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIOA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 950 |
| 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 – applicant is a citizen of China claiming fear of persecution as a Falun Gong practitioner – whether breach of Migration Act 1958 (Cth), s.424A – Tribunal's subjective appraisals, thought processes or determinations are not information for the purpose of s.424A(1). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A |
| Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27 referred to Paul v Minister for Immigration & Multicultural & Indigenous Affairs 920010 113 FCR 396 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 referred to SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 applied VAF v Minister for Immigration & Multicultural & Indigenous Affairs 920040 206 ALR 471 |
| Applicant: | SZIOA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 861 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 June 2006 |
| Date of Last Submission: | 22 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Ms Bautista |
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 $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 861 of 2006
| SZIOA |
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 Refugee Review Tribunal made on 1st February 2006. The Tribunal handed down its decision on 23rd February 2006. The decision of the Tribunal was to affirm a decision of a delegate of the Minister not to grant a protection visa to the applicant. The applicant is a citizen of the People's Republic of China who arrived in Australia on 25th August 2005.
On 5th October he applied for a protection (class XA) visa but this was refused on 31st October.
The applicant then applied for a review of that decision by the Refugee Review Tribunal. The applicant lodged his application for review with the Refugee Review Tribunal on 28th November 2005. His application contained no details of the nature of his claim, nor did he lodge any documentary evidence with his application. The Tribunal wrote to the applicant on 13th December 2005 advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour based on that information alone.
The Tribunal invited the applicant to attend a hearing on
Wednesday, 1st February 2006. The applicant accepted that invitation and attended the hearing on the morning of 1st February. He provided copies of his passport issued by the People's Republic of China.
The applicant gave oral evidence to the Tribunal about his practice of Falun Gong. He said that he had become a member in 1996 and continued to practice in secret after Falun Gong was banned.
The Tribunal asked the applicant a number of questions about Falun Gong and asked him to perform some of the exercises because of a problem with his back. The Tribunal's findings and reasons, which are quite brief, are set out on page 67 of the Court Book.
The Tribunal accepted that the applicant was a citizen of China.
The Tribunal did not accept the applicant's claim to be a Falun Gong practitioner and to have suffered persecution as a result. The reason for the Tribunal's finding was this:
His ignorance of Falun Gong beliefs and practices makes any other finding impossible. When the applicant stated that he could not perform an exercise because of his back, I gave him every opportunity to tell me about it in his own words. He claimed that the medicine he was taking for his back affected his memory but then started reciting material about the history and origin of Falun Gong, demonstrating that there was nothing wrong with his memory.
The Tribunal, after having considered the evidence as a whole, was not satisfied that the applicant had a well-founded fear of persecution in China for reason of his religion, his political opinion or any other Convention reason. Accordingly, the Tribunal found that the applicant did not satisfy the criterion set out in sub-s.36(2) of the Migration Act for a protection visa and affirmed the delegate's decision not to grant the visa to the applicant.
The applicant filed an application for judicial review in this Court on 23rd March 2006. He filed an amended application on 10th May 2006. In that application he sets out one ground alleging that the Tribunal failed to carry out its statutory duty. He provided five particulars of that ground, all of which relate to a claimed breach of the provisions of s.424A of the Migration Act. I will summarise the particulars of the ground as follows:
a)The only information before the Tribunal was that contained in the first respondent's file and that given to the Tribunal by the applicant.
b)The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision (see s.424A of the Migration Act). The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
c)The above particulars had to be provided in writing (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24). The applicant in referring to that decision referred to the judgments of McHugh J at 68 and 77 and Hayne J at 180 and 208.
d)The information to be given extends to that information given by the applicant to the first respondent as part of his application for a visa (see Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27). The applicant then quoted from that decision at paragraph 17. He went on to say:
The Court did not accept the Minister's argument that application in the context was said to mean all information given by the applicant to officials in the Department, including that provided to the Tribunal for the purposes of determining whether to grant a protection visa to the applicant.
e)The Tribunal based its findings on the information or lack of information contained in the applicant's application for a visa and was required by s.424A to give particulars of the information, explain why the information is relevant and provide the applicant with an opportunity to comment upon it. The Tribunal's failure to so act was a jurisdictional error.
For the first respondent Minister, Ms Mason of counsel submitted that the decision was a privative clause decision for the purpose of s.474 of the Migration Act and accordingly the decision could only be set aside where there has been a failure to discharge imperative duties or to observe inviolable limitations or restraints. I am referred to the decision of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]. For the first respondent, it was submitted that the applicant had made a general assertion that he was not given particulars of the information which was the reason or part of the reason for affirming the Tribunal's decision. Counsel went on to submit that the Tribunal did accept that the applicant was a citizen of the People's Republic of China but had not accepted the applicant's claim to be a Falun Gong practitioner and to have suffered persecution as a result because of:
a)his ignorance of the beliefs and practices of Falun Gong;
b)the fact that the applicant had declined to perform Falun Gong exercises when asked claiming to have had a bad back but when given the opportunity to describe the exercise instead, he claimed that the medication he was taking for his back affected his memory; and
c)the applicant began reciting the history of Falun Gong which indicated to the Tribunal there was in fact nothing wrong with his memory.
The first respondent submits that the overarching reason for the Tribunal's decision was its dissatisfaction with the applicant's level of knowledge of Falun Gong. That dissatisfaction resulted exclusively from matters which arose during the Tribunal hearing and accordingly the information in question was information given by the applicant for the purposes of his Tribunal application for review. At page 66 of the Court Book the Tribunal cited that the applicant had said to the Tribunal that the written statement attached to his primary application was a translation made by a friend of a statement he had written in Chinese. The Tribunal went on to say that the Tribunal went through the main elements of it and verified that they were in fact his claims. The Tribunal then records that the applicant added some detail and gave other oral evidence and the Tribunal asked the applicant a number of questions about Falun Gong. In my view, there is no breach of s.424A. The applicant did certify to the Tribunal that the written statement attached to his primary application for a visa was a translation made of a statement that he had written and verified to the Tribunal that those were in fact his claims. The applicant gave oral evidence to the Tribunal and answered a number of questions.
It is clear from the passage of the Tribunal decision to which I have previously referred that the reason why the Tribunal rejected the applicant's claims arose out of the applicant's evidence to the Tribunal. That evidence included the applicant's answers to the questions about Falun Gong that the Tribunal member asked of him. It is quite clear from the third paragraph of the findings and reasons on page 67 of the Court Book that it was the applicant's evidence to the Tribunal relating to Falun Gong and his ignorance of Falun Gong beliefs and practices were the reasons why the Tribunal did not accept that the applicant was a Falun Gong practitioner or had therefore been detained for reason of his practice of Falun Gong. It followed that the Tribunal found that it could not be satisfied that there was a real chance of the applicant's being detained or suffering harm amounting to persecution in any other way if he should return to China. Those were the reasons why the Tribunal affirmed the delegate's decision.
The Tribunal's views formed as a result of the applicant's oral evidence were in fact the Tribunal's appraisals, thought processes and determinations arising from the evidence. It is well established that the Tribunal's subjective appraisals, its thought processes or determinations are not information for the purpose of sub-s.424A(1) of the Migration Act (see SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [65] and [206]; see also Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 396 at 95, and VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 24).
In other words, the material upon which the Tribunal affirmed the delegate's decision comes within the exclusion provided in sub‑s.424A(3)(b) of the Migration Act. There is no breach of s.424A of the Act.
I have read the Tribunal decision thoroughly independently of the applicant's claims and I am of the view that no other jurisdictional error can be found to which the applicant has not sought to bring my attention. Accordingly, as I find there is no jurisdictional error, the decision is indeed a privative clause decision for the purpose of s.474 of the Migration Act. It follows then that the application must be dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 June 2006
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