SZIQQ v Minister for Immigration

Case •

[2007] FMCA 712

•

1 May 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIQQ v MINISTER FOR IMMIGRATION [2007] FMCA 712
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa to the applicant – applicant is a citizen of the People’s Republic of China claiming fear of persecution because of her Falun Gong practice – credibility – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 474(2)
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Applicant: SZIQQ
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 43 of 2007
Judgment of: Scarlett FM
Hearing date: 1 May 2007
Date of last submission: 1 May 2007
Delivered at: Sydney
Delivered on: 1 May 2007

REPRESENTATION

The Applicant: Appeared in person
Solicitors for the Respondent: DLA Phillips Fox

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the first respondent's costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 43 of 2007

SZIQQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was signed on 15th November and handed down on 5th December 2006.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection


    (Class XA) visa.  The applicant asks the Court for a review of that decision and asks for a writ of certiorari quashing the decision of the Refugee Review Tribunal and an order that the Tribunal should reconsider the matter according to law.

  2. The background to this matter is that the applicant is a citizen of China who arrived in Australia on 28th September 2005.  She applied for a protection (Class XA) visa on 5th October that year but it was refused on 11th November.  The applicant then applied to the Refugee Review Tribunal for a review of that decision.  On 13th February 2006 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.  The applicant then filed an application in the Federal Magistrates Court asking for judicial review of the Tribunal decision.  On 24th August 2006 Driver FM made orders by consent quashing the decision of the Tribunal and issuing a writ of mandamus directing the Tribunal to reconsider and determine the matter according to law.

  3. After the application was sent back to the Tribunal, the Tribunal wrote to the applicant on 8th September 2006.  The Tribunal invited the applicant to attend a hearing on 2nd November that year.  The applicant attended that hearing and gave evidence with the assistance of an interpreter.  The applicant told the Tribunal that she feared persecution in China because of her practice of Falun Gong.  The Tribunal asked the applicant a number of questions about her case.  The Tribunal handed down its decision on 5th December.  A copy of the Tribunal decision record can be found at pages 102 through to 113 of the Court Book.  The Tribunal's findings and reasons are set out on pages 109 to 113.  In the decision the Tribunal set out a summary of the applicant's claims and evidence and described at pages 106 through to 108 the evidence given by the applicant at the Tribunal hearing.  The Tribunal also referred to independent country information about Falun Gong and information about when and why Falun Gong started to attract government attention in China. A summary of this evidence can be found at pages 108 and 109 of the Court Book.

  4. In the Tribunal's findings and reasons the Tribunal stated that it was satisfied that the applicant was a citizen of China.  The Tribunal, however, was not satisfied that the applicant had ever been a Falun Gong practitioner.  The Tribunal at page 109 of the Court Book described the applicant's evidence as “internally inconsistent” and inconsistent with some of the information contained in the statement that the applicant had provided to the Tribunal in support of the application for review.  The Tribunal described the applicant's knowledge of basic facts relating to Falun Gong as “incommensurate with her claims that she had been a practitioner since 1997.” 


    The Tribunal then set out on pages 109 through to 111 the reasons why the Tribunal was not satisfied with the applicant's credibility as a witness.  The Tribunal went on to find that given its adverse credibility finding about the applicant and in consideration of the evidence given as a whole, the Tribunal did not accept that the applicant had ever been a Falun Gong practitioner or that she was ever involved in any activities relating to Falun Gong.  The Tribunal rejected the claim that the applicant had suffered any of the harm that she had claimed and did not accept that there was a real chance of that sort of harm occurring to the applicant in the reasonably foreseeable future.  In short, the Tribunal did not accept that the applicant had a well-founded fear of persecution for a Convention reason.

  5. The applicant has sought judicial review of that decision by means of an application filed on 6th January 2007.  In that application the applicant sets out three grounds why she believes that she is entitled to relief from the Court.  First, the applicant says that the decision involved an error of law in that procedures that were required by the migration regulations to be observed in connection with the making of the decision were not observed.  Second, the applicant said that she believes that she is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Third, the Tribunal, according to the applicant, had no reasonable evidence to demonstrate that she did not have a well‑founded fear of persecution for a Convention reason if she were to return to China.

  6. The applicant did not file a written outline of submissions but attended the hearing before the Court and accepted the invitation to expand on the grounds in the application.  The applicant told the Court that whilst the Tribunal said that her answers to questions were inconsistent, she in fact had some health problems on the day.  She did not elaborate on those problems except to say that she told the Tribunal member that she had had a lack of rest which was why she did not answer correctly.  The applicant also told the Court that the Tribunal did not have any evidence to show why she did not have a well-founded fear of persecution and submitted that for the Tribunal to make that finding, that it was necessary for it to have evidence.

  7. For the respondent Minister, Ms McDonald, solicitor, filed a written outline of submissions and addressed the Court briefly.  She submitted that there was nothing in the decision that contained any reference to the applicant having complained of any health problem at the hearing.  Ms McDonald also submitted that it is for the applicant to satisfy the Tribunal that she had a well-founded fear of persecution.  The reason why the Tribunal did not find in favour of the applicant was because the Tribunal did not find the applicant to be a credible witness. 


    The applicant did not seek to address the Court in reply.

  8. In this case, it is clear that the reason why the Tribunal affirmed the decision of the delegate not to grant a protection visa was because the Tribunal found that the applicant was not a credible witness. 


    This finding was due to the perceived internal inconsistencies in the applicant's evidence and inconsistencies between the applicant's evidence and the statement of her claims provided to the Tribunal.  It is submitted on behalf of the Minister, and in my view correctly, that findings in relation to credibility will not be disturbed by the Court unless they were not reasonably open on the evidence (see Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]). Findings of fact based on an assessment of credit that is itself open on the material or has some rational basis again are not reviewable by the Court. I am referred to the decision of Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [558] to [559]. It is submitted on behalf of the Minister, and I believe correctly, that the adverse credibility finding made by the Tribunal was open to it because of the applicant's inconsistent evidence at the hearing and her lack of knowledge about Falun Gong.

  9. Again, as regards the applicant's claim that the Tribunal did not have reasonable evidence to demonstrate that she did not have a well‑founded fear of persecution, it is well established that it is for an applicant to satisfy the Tribunal that the applicant has a well-founded fear of persecution for a Convention reason.  It is not incumbent upon the Tribunal to produce evidence to disprove an applicant's claim. 


    An applicant must establish that he or she meets the criteria for a visa (see in particular s.65 of the Migration Act).

  10. The applicant's other ground, namely, that she believes that she is a person to whom Australia has protection obligations under the Refugees Convention, is no more and no less than an attempt to challenge the basic finding of the Tribunal.  No jurisdictional error is demonstrated in respect of any of the applicant's claims.

  11. I am aware that the applicant is not legally represented in these proceedings. I have read through the Tribunal decision independently of the claims of the applicant or the submissions of the first respondent. I am not able to discern any arguable jurisdictional error that has not been brought to my attention by either party and I believe that there is none. As there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. Consequently, the decision is not subject to any orders in the nature of certiorari or mandamus which the applicant seeks. It follows that the application must be dismissed.

  12. There is an application for costs on behalf of the first respondent Minister.  The applicant has been wholly unsuccessful in her claim and I am satisfied that it is appropriate to make an order for costs in favour of the Minister.  The amount sought, namely, $2,500.00, is an appropriate figure in the circumstances.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  10 May 2007

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