SZIRH v Minister for Immigration
[2006] FMCA 1288
•22 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIRH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1288 |
| 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 The People's Republic of China claiming a fear of persecution as a Falun Gong practitioner – privative clause decision – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 422B, 424A, 425, 474 Federal Magistrates Court Rules 2001 r.44.05 |
| Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 SZCJD v Minister for Immigration & Multicultural & Multicultural & Indigenous Affairs [2006] FCA 609 VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 |
| Applicant: | SZIRH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1094 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 August 2006 |
| Date of Last Submission: | 22 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Free |
| Solicitors for the Respondents: | Sparke Helmore |
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 $4,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1094 of 2006
| SZIRH |
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, signed on 28th February 2006, in which the Tribunal handed down its decision on 14th March 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant. The applicant is a citizen of the Peoples’ Republic of China, who arrived in Australia on 12th July 2005 and applied for a protection (class XA) visa on 11th August.
A delegate of the Minister refused his application on
11th November 2005, so the applicant applied to the Refugee Review Tribunal for a review of that decision. The applicant attended the hearing of the Tribunal on 9th February 2006 where he gave oral evidence. He was accompanied by his Migration Agent. He claimed a fear of persecution because he was a Falun Gong practitioner.
He produced his Chinese passport at the hearing. The applicant said that he had been detained in May 2003 and was beaten and denied food. After about a month he was released but kept under surveillance and harassed by the police. He said that he practised Falun Gong since he had come to Australia.
After the applicant gave evidence his agent made some oral submissions. The Tribunal's findings and reasons are set out on pages 75 to 77 of the Court Book.
The Tribunal noted that although the applicant gave his evidence in a very polite and calm manner, the Tribunal found him "a thoroughly unconvincing witness." The Tribunal set out reasons for this perceived lack of credibility at page 75:
The applicant's evidence often seemed rehearsed. It appeared to the Tribunal that rather than speaking about matters which he had personally experienced he was reciting information he had learned. Examples of this include the evidence he gave in reply to being asked to described his Falun Gong practice in China and why he continued to practice it after it was banned and he was dismissed, as well as his evidence about the arrangements made for him to come to Australia. At other times his evidence was given in a very tentative manner.
The Tribunal found that a significant aspect of the applicant's evidence was contradicted by information from sources consulted by the Tribunal. The Tribunal had referred to a number of reports and publications and this information appears at pages 73 to 75 of the Court book. The specific information that the Tribunal considered related to the time and the way in which the Chinese government banned Falun Gong in July 1999.
The Tribunal stated that if the applicant had been a Falun Gong practitioner as he claimed, he would have been able to distinguish between when the government crackdown began and when Falun Gong was banned. The Tribunal also found that the applicant lacked knowledge about significant Falun Gong events. The Tribunal concluded that the applicant was not a credible witness and that his claims that he was a Falun Gong practitioner were pure inventions, see page 77 of the Court Book.
The Tribunal did not accept that the applicant practised Falun Gong in China or had done so in Australia and, therefore, did not accept that he had ever been dismissed, detained, harassed, or harmed in any way because he was a Falun Gong practitioner. The Tribunal found that the applicant did not have a well founded fear of convention related persecution in China and affirmed the decision not to grant a protection visa.
The applicant commenced proceedings in this Court by filing an application under r. 44.05 on 12th April 2006. In support of his application for an order quashing the decision of the Refugee Review Tribunal, he sets out three grounds. In the first he says that he was born in China and came to Australia on 12th July 2005. After he arrived, he applied for a protection visa with the Department of Immigration Multicultural and Indigenous Affairs. It was refused.
Then he lodged the application to the Refugee Review Tribunal. “Unluckily”, he said, he “performed well and the Tribunal showed a believable attitude on” him. To review his application he appealed to the Federal Magistrates Court of Australia. The comment that I would make at this stage is that what is set out in that paragraph does not contain any ground for review. All that it does is set out the background and procedural history of his application.
In the second and third grounds, however, the applicant proceeds to explain why he believed the Tribunal decision contained an error.
In ground 2 he says:
I believe the decision made by Refugee Review Tribunal was not fair because during the proceedings the Member and Tribunal did not show anything that they refused my words. If she was confused about my evidence I can provide more explanation. However, she did not give me any chance. I performed well.
I sincerely hope the government of Australia could give me a chance to stay in this country.
In the third ground, the applicant continues with this complaint, saying as follows:
During the hearing she never mentioned but in the letter said that my evidence seemed rehearsed and she thinks I was speaking about matters not like my personally experience, but was reciting information I have learnt. It is unfair.
The applicant is to some extent challenging in factual findings of the Tribunal, and findings as to credibility it is well established are findings of fact. So far as there is evidence upon which a finding of fact can be based, a Court conducting judicial review will not and should not interfere.
The applicant is also complaining that the Tribunal member did not indicate to him during the hearing that she did not believe his evidence. He reiterated that in his oral submissions. He was not able to tell the Court what difference, if any, such a procedure would have brought about. In any event, it is well established that there is no obligation on the Tribunal to disclose the Tribunal's thought processes and there is no obligation to advise the applicant during the hearing that the Tribunal does not accept some or all of the applicant's evidence.
It is no breach of the Natural Justice Hearing Rule and even if s.422B of the Migration Act were not in existence it would not be a denial of common law natural justice for the Tribunal not to tell the applicant that the Tribunal was not accepting his evidence.
I am mindful of the fact that the applicant is not legally represented.
In my view, it is incumbent upon the Court to conduct its own independent examination of the Tribunal decision in order to satisfy itself that there is no arguable ground of review that appears in that decision that has not been articulated by the applicant. I am unable to discern any.
Counsel for the respondent, Mr Free, has submitted in a helpful written submission, that there is no breach of s.425 of the Migration Act. It is clear, as he submits that the Tribunal complied with that requirement. It invited the applicant to give evidence and present arguments, and the applicant did, indeed, appear at the hearing and give evidence in support of his application. Counsel for the respondent also submits that no breach of s.424A of the Migration Act has been shown.
The Tribunal's decision is based largely on the applicant's evidence and the Tribunal's disbelief of the credibility of the applicant's evidence. The Tribunal's decision is also based upon its acceptance of independent country examination and at times where the applicant's evidence is contradicted by the independent country information, the Tribunal has chosen to prefer the country information. Whilst it is clear that independent country information is proved to be part of the reason of the Tribunal affirming the delegate's decision, this does not trigger an obligation under sub-s.424A (1).
The information, to my mind, comes clearly within the exclusion in
s.424A (3) (a) being information about a class person. Counsel for the first respondents refers to VHAP of 2002 v Minister of Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 at [14], where Giles and Conti JJ held that the reference in s.414A(3)(a) to information being just about a class of persons is not an additional criterion to be met.
Rather –
Their Honours said –
That phrase is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it.
The decision in VHAP (supra) is a decision of the Full Court of the Federal Court and it is clearly binding upon the Federal Magistrates Court. In my view, the country information to which the Tribunal referred falls clearly within the exception in s.424A(3)(a) and no breach of s.414A has been demonstrated. It also goes without saying that information given by an applicant in response to questioning by the Tribunal is not information to which s.414A applies even though the information might also have been provided to the Tribunal from another source, and I refer to SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 at [42] and [43]. That decision of Heerey J is a decision on appeal from the Federal Magistrates Court and it too is binding on this Court.
The applicant referred to a difference between what was set out in the Tribunal's reasons for decision and what appeared on the tapes of the Tribunal hearing. In my view, nothing turns on that as the Tribunal's reasons for decision are just that and are not meant to be a verbatim transcript. The applicant did not provide a transcript of the hearing and indicated that his Migration Agent said that provision of a transcript would be expensive and would cost something like $700.00 to $800.00.
The applicant did tell the Court that in respect of the dates of the crackdown by the Chinese government on Falun Gong practitioners and the banning of Falun Gong at times in July 1999, whilst he could not remember the dates he could remember the events, and he believes that the Tribunal had misunderstood his answers or had got the facts wrong. Either way that will not avail him as the factual matters are purely within the province of the Tribunal, and even if there is a factual error this will not necessarily lead to jurisdictional error. I refer to the well known decision of the High Court in Abebe v Commonwealth (1999) 197 CLR 510.
There is no jurisdictional error that I can see. As I said I have read through the decision myself. It is clear that the main reason why the Tribunal affirmed the delegate's decision was that the Tribunal just did not believe the applicant's evidence. Credibility decisions are findings of fact and so long as there is evidence upon which factual conditions and inclusions can be based, the Court will not interfere. It is clear in this decision that the Tribunal set out the reasons why the Tribunal was not satisfied about the applicant's credibility.
There is no jurisdictional error and, accordingly, the decision of the Tribunal is a privative clause decision as defined in sub-s.474(2) of the Migration Act. Accordingly, no relief in the nature of certiorari or mandamus or prohibition will lie. The application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been wholly unsuccessful in his claim and, in my view; there is no reason why costs should not follow the event. The amount sought is $4,700.00 inclusive of counsel's fees. In my view, that is a reasonable amount and within the scale envisaged by the Federal Magistrates Court rules. I propose to make an order that the applicant should pay those costs and I propose to find that $4,700.00 is the appropriate figure.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 31 August 2006
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