SZJFJ v Minister for Immigration & Anor
[2007] FMCA 1824
•22 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJFJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1824 |
| MIGRATION – Review of decision of RRT – where grounds of application lack any particularity. |
| Migration Act 1958, ss.424, 425 |
| NATC v Minister for Immigration [2004] FCAFC 52 VTAG v Minister for Immigration [2004] FCAFC 447 NACB v Minister for Immigration [2003] FCAFC 235 NAST v Minister for Immigration [2004] FCA 86 NAAH of 2002 v Minister for Immigration [2002] FCAFC 354 |
| Applicant: | SZJFJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2264 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 October 2007 |
| Date of last submission: | 22 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2007 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs in the sum of $2,800.00.
The name of the First Respondent be amended to “Minister for Immigration & Citizenship.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2264 of 2006
| SZJFJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. He arrived in Australia on 28 November 2005. On 9 January 2006 he applied to the Department of Immigration & Multicultural Affairs for a protection (Class XA) visa. On 2 March 2006 a delegate of the Minister declined to grant the visa and on 6 April 2006 the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. The Tribunal held a hearing at which the applicant was in attendance on 21 June 2006. On the same day the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 18 July 2006.
There is found with the applicant's protection visa application forms a statement [CB 30]. The statement indicates that the applicant is a Falun Gong practitioner who is not willing to return to his home country and seeks the protection of Australia. The statement says:
“I started contact with Falun Gong practitioners and practised Falun Gong only recently after I arrived in Australia. I have studied “Zhuan Falun” written in Chinese and learned some basic cultivation and practice techniques. Now I attend group practice three or four times each week and practise at my home every day. I also take actively part in all activities by Falun Gong groups, propagating Falun Gong and influencing people with its Truthfulness, Compassion and Forbearance. “
At the hearing before the Tribunal the member indicated that he found the applicant's claims to be vague and general and provided no indication that the applicant ever practised or had any knowledge of the philosophy. The Tribunal questioned the applicant about his knowledge of the exercises which the applicant was unable to respond to with any precision. He claimed to have forgotten what the exercises were. He told the Tribunal that he had been working and this had left him with little time to practice Falun Gong. Notwithstanding his statement he told the Tribunal that he only practised about once a month.
The Tribunal then turned to questioning the applicant about what he thought might happen to him if he returned to China.
“He replied he thought it was possible that members in Australia knew about it. The Tribunal put to the applicant that from his claims all they would know was that he did some limited exercises, but even he did not know what the exercises were. The applicant did not respond … The applicant then claimed he had participated in it at the beginning when he arrived in Australia and he feared that some of the people knew this and if he returned to China they will know he is a Falun Gong practitioner. The Tribunal put to him that he was not a Falun Gong practitioner and only had a short involvement in it. The applicant stated that this was right, he only practised for a very short time.”
The findings and reasons of the Tribunal essentially repeat the matters contained in the claims in evidence. It came to the conclusion from that evidence that it could not accept that the applicant was truly a Falun Gong practitioner.
“The Tribunal accepts his claim that he has not had anything other than a passing and a very short-term interest in Falun Gong and has not become what could reasonably be regarded as a Falun Gong practitioner in Australia, nor does he claim to have had any involvement with the Falun Gong associations in Australia or even to have practised in his own home over the last some five months. Nor does the applicant provide any evidence to support his claims. Accordingly, the Tribunal has not been able to satisfy itself that the applicant is or has been what could reasonably be regarded as a Falun Gong practitioner or that such an association could be imputed to him.”
It followed from the Tribunal's finding that it did not believe that he would come to any harm should he return to China. The Tribunal looked into the possibility that the applicant could be considered a political dissident because of some remarks he had made about freedom to express oneself in China but noted that the applicant did not claim to have had any political involvement in China, nor did he claim a well-founded fear of serious harm amounting to persecution for a Convention reason on this or any other basis. The Tribunal concluded that it was not satisfied that there was a real chance he would be subject to serious harm amounting to persecution should he return to China.
The applicant filed an application with this court on 15 August 2006 seeking review of the decision of the Tribunal. He stated that the Tribunal decision was affected by jurisdictional error for which he provided three particulars. The first was that the Tribunal took into account an irrelevant consideration. No particulars of this are provided. Whilst I appreciate the attempt by counsel for the respondent to guess at what this might be I do not think this is a very safe method of proceeding. I would say simply that an assertion of such generality cannot substantiate a claim.
The second matter was that the Tribunal failed to accord the applicant procedural fairness. Once again there are no particulars and once again the Minister bravely guesses that this might be some allegation of a failure to comply with either s.424A of the Migration Act 1958 or s.425. The content of the Tribunal decision, which confirms that the applicant was assisted by an interpreter, would seem to indicate that no breach of s.425 occurred. I am not satisfied that there was any "information" utilised by the Tribunal that was not information provided by the applicant to it and thus s.424A(1) would not be enlivened. But these are only suppositions of mine. The real failing is that the applicant has not particularised his claim.
The applicant then alleges that the Tribunal acted capriciously and arbitrarily in forming its assessment of satisfaction on illogical reasoning. Actually the Tribunal formed an assessment that it was not satisfied. This is not a positive finding. It is the applicant's duty to satisfy the Tribunal. If the applicant does not provide the Tribunal with enough information to allow it to reach that state of satisfaction the Tribunal is obligated not to grant a visa.
The question of illogical reasoning has been considered by a number of Full Courts. In NATC v Minister for Immigration [2004] FCAFC 52 at [27] the Court said:
“Opinions can vary upon what is inherently improbable or unacceptable as evidence of a fact or of what evidence "makes sense", that is whether evidence is probative in relation to a particular fact. In the absence of perversity or some manifest error sufficient to give rise to some jurisdictional error, the court cannot intervene. “
In VTAG v Minister for Immigration [2004] FCAFC 447 at [58] Weinberg J noted:
“Even if the Tribunal's reasons contain conclusions that were illogical, that would not, of itself, amount to jurisdictional error.”
In NACB v Minister for Immigration [2003] FCAFC 235 the Full Court of this Court held that:
“Illogical reasoning does not of itself constitute an error of law or jurisdictional error.”
In relation to the assessment of satisfaction, it is worth recalling what Allsop J said in NAST v Minister for Immigration [2004] FCA 86 at [6]:
“[6] My task in an application such as this is to ensure that the Tribunal has approached the matter lawfully so that it can be assessed one way or the other whether the claims of the applicants have been lawfully and properly considered. What it is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well-founded fear of persecution under the Refugee Convention.
[7] Pursuant to the statute, if the Tribunal is satisfied of all relevant things it must grant a visa. Also, if the Tribunal is not satisfied of all relevant things, it must not grant a visa.”
The one particularisation that the applicant did give in his application was that the Tribunal concluded that he was not a committed Falun Gong practitioner because he had limited knowledge of Falun Gong. This, of course, is absolutely correct. The applicant argues that by reaching such a conclusion the Tribunal failed to consider his explanation that he was an entry level practitioner and he had to work to support himself and did not have too much time to practice Falun Gong. To attack this finding of the Tribunal is to request from this court impermissible merits review which was explained by the Full Court in NAAH of 2002 v Minister for Immigration [2002] FCAFC 354 at [27]:
For a court to set aside a negative decision on the basis that a reasonable decision-maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision-maker would be to travel far beyond any of the well-established circumstances in which courts can set aside administrative decisions. In effect, it would be to substitute the court's view of the facts for that of the decision-maker, a course traditionally regarded as not open to courts.
Before me today the applicant had little to say. He did not think the Tribunal's decision was made in a satisfactory manner and he repeated the necessity to have to work to earn his living when he first arrived in Australia. He told me that he now did attend Falun Gong activities at Darling Harbour and that he practiced at home. But this new evidence cannot influence me because this is not a court of appeal, it is a court of review. What has occurred since the Tribunal's decision cannot go to a decision as to whether or not it was made in jurisdictional error.
The application is dismissed. The applicant must pay the first respondent's costs which I assess in the sum of $2,800.00. The name of the first respondent will be amended to "Minister for Immigration & Citizenship".
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
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