SZIUL v Minister for Immigration
[2007] FMCA 475
•5 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIUL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 475 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 476 Federal Magistrates Court Rules 2001 (Cth), rr.44.11, 44.12 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Craig v State of South Australia (1995) 184 CLR 163 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZIUL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1307 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 13 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Ms L Gazi of Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 8 May 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1307 of 2006
| SZIUL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 8 May 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 30 March 2006 and handed down on 20 April 2006, affirming a decision of the delegate of the first respondent made on 23 December 2005, refusing to grant the applicant a protection (class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIUL”.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction, under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with the hearing under r.44.12 of the Rules and set the matter down for final hearing.
A Court Book ("CB") prepared by the first respondent's solicitors was filed on 5 June 2006. I have marked this as Exhibit “A" and the contents were read into evidence.
Background
The Tribunal decision of Ms Philippa McIntosh, reference N06/53088, provides the following background material. The applicant, who claims to be a citizen of the People’s Republic of China (“the PRC”), arrived in Australia on 11 September 2005. On 18 October 2005, he lodged an application for a protection (class XA) visa with the Department of Immigration under the Act. On 23 December 2005, a delegate of the Minister refused to grant a protection visa and on
27 January 2006, the applicant applied to the Tribunal for review of the delegate’s decision.(CB 66)
The applicant claims he was born in Liaoning Province and at the time of his protection visa application was 46 years of age. He had lived at a single address in Talian City in Liaoning Province from birth until he left the PRC in September 2005. He claims he had worked for the Power Group PRC from 1985 until he left the PRC, at which time he had been a Director of the firm. His parents and brother were long-term practitioners of Falun Gong and he had often joined them in their practice.(CB 68)
In a brief written statement to the Department, the applicant stated he and his family members were practitioners of Falun Gong. After Falun Gong was banned by the government in July 1999, his mother went to Beijing to appeal against the ban. In 2000, she was detained and was imprisoned for three years for breaking social order and the law of society. He claimed his brother was imprisoned for nine years, and further claims that both his mother and brother were tortured. The applicant claimed his brother escaped from prison in February 2003 and went into hiding. The authorities continued to look for him for one year. The applicant often sent his brother money and goods to help him in this period. Their father became very ill and his brother returned secretly to visit him on 23 August 2005, at which time his brother was arrested by the authorities. The applicant was told by a friend in the Public Security Bureau (“PSB”) that he himself was being investigated and was to be charged with harbouring a criminal. To avoid arrest, he used an opportunity to join a business trip to Australia.(CB 31)
Tribunal’s findings and reasons
The Tribunal accepted that the applicant is a national of the PRC and that the PRC government had a harsh propaganda campaign against Falun Gong since banning its practice in 1999. Although the applicant claimed that he had been a long‑standing practitioner of Falun Gong, he was unable to submit any documentary evidence from any fellow practitioner or Falun Gong-related group in Australia. When asked by the Tribunal, he was unable to correctly perform one of the basic Falun Gong exercises. This led the Tribunal member to form the view that she was not satisfied that the applicant was a genuine Falun Gong practitioner.(CB 75)
The Tribunal also noted the inconsistencies with the information supplied to the Department in respect to his close relatives. He had failed to supply documentary evidence in respect to the brother that he claimed had been gaoled for nine years, escaped and returned to visit his dying father, which ultimately led to the problems faced by the applicant for allegedly harbouring the fugitive brother. The applicant also listed his father as still living at the time that he arrived in Australia, however, he gave contrary evidence to the effect that the father had died about the time of his brother's escape. The Tribunal ultimately reached the view that it was not satisfied that the applicant had a brother.(CB 75)
During the Tribunal hearing, the applicant alleged that he had been assaulted when arrested by the PRC authorities in 2003, but this issue was not raised in his application. The applicant indicated that he had received a PRC passport in his own name some four months before the incident in which he claimed his brother returned home, and he then becoming a person of interest by the PSB. The Tribunal formed the view that the obtaining of the passport prior to these events indicated the applicant had been planning to leave the PRC unrelated to a fear of persecution. The Tribunal also expressed concern in respect to the claim that he was advised by a friend that he was being investigated by the PSB. The applicant indicated that he did not know this person personally, and this cast doubt on the plausibility that the applicant was warned of any impending arrest.
Application for review of the Tribunal’s decision
On 8 May 2006, the applicant filed an application for review, under s.39B of the Judiciary Act. In accordance with leave granted at the first Court date directions hearing, the applicant filed an amended application, dated 14 August 2006, which contained the following ground:
1. The Tribunal constructively failed to exercise its jurisdiction.
Particulars
It failed to take into account a relevant consideration, namely that the applicant's written statement was contemporaneous with his application for a protection visa.
Submissions and reasons
The applicant appeared as a self-represented litigant, with the assistance of a Mandarin interpreter. The applicant participated in the Court-sponsored legal advice scheme. The panel lawyer provided him with the amended application and written submissions to file in these proceedings. The applicant also made oral submissions, however, a substantial part of this material appears to be a restatement of the applicant's claim. Consequently, I will substantially rely on the content of the applicant's written submissions that were prepared by the panel lawyer. In those submissions, it is submitted under the heading ‘Grounds of Review’, that the Tribunal erred by failing to take into account a relevant consideration, namely that the applicant's written statement was contemporaneous with his application for a protection visa. It is submitted this error resulted in the Tribunal failing to consider the essence of the applicant's claim and, therefore, constructively failing to exercise its jurisdiction. The reasons of the Tribunal reveal that it misunderstood the evidence before it in relation to the applicant's brother. The question of whether the applicant had a brother arose because the applicant did not list his brother when applying for a protection visa. However, the applicant's statement, which is attached to his protection visa application lodged on 18 October 2005, expressly mentions his brother and the claims in his statement are consistent with the claims made before the Tribunal.
In the applicant’s written submission, it is argued that the Tribunal's view that the applicant's claim regarding his brother developed after his original application for a protection visa can be seen from the following statements:
I put to him that he had not listed his brother in the application for a protection visa as being a member of his family…(CB 71)
In the Protection Visa application form, you did not list a brother as a member of your family, although you now claim that it is because of a brother that you have had problems with the Public Security Bureau. You have submitted no evidence that you have a brother.(emphasis added)(CB 73)
In its summary of the applicant's response to the Tribunal it states:
As to why he did not list a brother as a member of his family, but now claimed that it was because of a brother that he had had problems with the PSB…(emphasis added)(CB 74)
Under the heading, ‘Findings and Reasons’, the Tribunal refers to the applicant's claim regarding his brother, then states:
…Despite being asked to list his close relatives on the protection visa application form, he did not refer to a brother. He has provided an explanation for that. However, he has since failed to provide any documentary evidence that he has a brother, despite being advised by the Tribunal of the significance of a failure to do so.(CB 75)
It is submitted for the applicant, that these comments were made despite the Tribunal's express reference at CB 68-69 to the written statement that accompanied the applicant's application for a protection visa. This contained his claim regarding his brother, and the fact that during the hearing, the applicant brought that written statement to the Tribunal's attention when the matter was raised. It is submitted that in the circumstances, where the Tribunal found that the applicant did not have a brother (CB 75) after constantly referring to the fact that his claim of a brother was not in the original application, the fact that the statement was contemporaneous with the application for a protection visa was a relevant consideration.
It is submitted on behalf of the applicant that the Tribunal's error was jurisdictional in character. A factual error may constitute jurisdictional error in circumstances where the Tribunal identified a wrong issue, ignored relevant material, or relied on irrelevant material, in such a way as affects the exercise of its powers: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82]-[84]. See also Craig v State of South Australia (1995) 184 CLR 163 at 179. Similarly, in NABE v Minister for Immigration (No.2) (2004) 144 FCR 1, the Court said, at [63]:
…It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error…
It is submitted on behalf of the applicant that, in the applicant's case, the Tribunal misunderstood that he claimed to have a brother in his original application. It made a preliminary finding that he did not have a brother, which meant that the Tribunal did not address whether he feared persecution from the police for harbouring a relative that had been imprisoned for his political beliefs. This was the essence of the applicant's claim. Fear of persecution is an essential integer of assessing whether the applicant had a well‑founded fear of persecution for a Convention reason. Failing to address that aspect because of an earlier error would, therefore, affect the exercise of the Tribunal's powers. It is true that the Tribunal found that the applicant intended to travel out of the PRC for reasons unrelated to a fear of persecution, and that this was consistent with evidence that he continued to go to his workplace and live at his home address until leaving for Australia. At first glance, those findings may give rise to the argument that the Tribunal implicitly expressed that it was not satisfied the applicant feared persecution independently of any findings in relation to his brother.
It is submitted, however, the fact is that the Tribunal did not go on to make an independent finding in relation to any fear the applicant may have had. Instead, the Tribunal's ultimate findings included the following statement:
…I am not satisfied that he was or is of any adverse interest to the PRC authorities for reasons relating to a family member, either because that relative was a Falungong practitioner or because that relative was wanted by the authorities for any other reason listed in the Convention.(CB 76)
This must be taken to be a reference to the applicant's brother, as there is no reference to the applicant's mother (the only other relative claimed to have been in trouble with the authorities) anywhere else in the section headed ‘Findings and Reasons.’ Given that reference, there is no basis for arguing that the decision was not based in some way on the finding regarding the brother's existence, even if other findings formed part of the Tribunal's reasoning in relation to the applicant's fear of persecution. For these reasons, the Tribunal erred in taking into account an erroneous fact when stating that it was not satisfied that the applicant had a brother, and such finding distracted the Tribunal from answering a question critical to the exercise of its power. Accordingly, the Tribunal's decision is vitiated by jurisdictional error.
The applicant's oral submissions to the Court were read by the applicant from a prepared document in his own language. As indicated above, a very substantial part of these submissions repeated the applicant's claim in his own words. I do not believe that the applicant raised any issue in respect of the judicial review that was not addressed in his written submissions filed in these proceedings.
Mr Reilly, for the respondents, also filed written submissions, which he indicated to the Court he would rely upon. It was submitted that the Tribunal rejected all of the applicant's substantive claims. This was because it was not satisfied the applicant, or any member of his family, was a Falun Gong practitioner, or that he even had a brother or was of any interest to the PRC authorities. The Tribunal noted a number of implausibilities and contradictions in the applicant's claims for coming to this conclusion. It is submitted that these conclusions are findings of fact par excellence: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]. Mr Reilly submits that the Tribunal's findings were open for the reasons that it gives and the Court cannot review the merits of the Tribunal's decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272. It is submitted that there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137].
Mr Reilly contends that the amended application and submissions filed on behalf of the applicant claim that the Tribunal failed to take into account that the applicant's protection visa statement at CB 31 was contemporaneous with the applicant's protection visa application, and that this was a failure to take into account a relevant consideration.It is submitted that this argument fails at the outset because there is nothing to suggest that the Tribunal considered that the statement and application were not contemporaneous.The Tribunal mentions both in its discussion of material before it.(CB 68-69)The Tribunal's concern was that the brother was not mentioned in the protection visa application at CB 6, despite the applicant's alleged dead father and his mother being listed there.There is nothing to suggest that the Tribunal had overlooked that the brother was mentioned in the accompanying statement at CB 31 or had overlooked that his statement was contemporaneous with the protection visa application.
Mr Reilly submits the fact that the brother was not mentioned in the protection visa application was simply one of a number of factors that the Tribunal took into account to find that the applicant did not have a brother.(CB 75.6) It was submitted that this is a natural reading of the Tribunal's reasons, and the reading urged by the applicant is both unnatural and contrary to Minister for Immigration v Wu Shan Liang at 272-272 and 291. The mere fact that the Tribunal's s.424A letter states:
…you now claim that it is because of a brother that you have had problems with the Public Security Bureau.(CB 58.3)
cannot lead to the inference urged by the applicant that his claim regarding his brother developed after his original application for a protection visa, which is the proposition contained in the applicant’s written submissions at [13] above.
All that has happened is that the Tribunal did not believe the applicant's claim that he had a brother, for several reasons, including a brother not being mentioned in his protection visa application.(CB 6) Mr Reilly argues that this is a factual conclusion that was open to the Tribunal.
Mr Reilly submits that the Tribunal did not overlook that the applicant's protection visa's statement was contemporaneous with the protection visa application. However, even if it had, it would be no more than a wrong finding of fact: NABE v Minister for Immigration (No. 2) at [31], [52-54], [68].
Conclusion
Although the applicant is a self-represented litigant, he had the benefit of written submissions prepared for him by the panel lawyer allocated to him. As the applicant in his oral submissions did not raise any issue of jurisdictional error and merely repeated his claims, I have relied on the written submissions prepared for him. I am satisfied that the ground of review contained in the amended application can not be sustained. I have considered the material contained in the Court Book and the decision, and on the face of those documents, it is not apparent that any other jurisdictional error exists. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 4 April 2007