SZJGV v Minister for Immigration & Anor
[2007] FMCA 685
•15 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJGV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 685 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution as a Falun Gong practitioner – whether the Tribunal properly had regard to the applicant’s evidence – merits review – irrationality and illogicality – no jurisdictional error. PRACTICE & PROCEDURE – Need for Tribunal members to edit transcripts of decisions before handing down. |
| Migration Act 1958 (Cth), ss.91R, 424A, 474 |
| NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 referred to Abebe v Commonwealth of Australia (1999) 197 CLR 510; 162 ALR 1 referred to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 referred to NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004[ FCAFC 52 followed NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 235 followed S635 of 2003 v Minister for immigration & Multicultural & Indigenous Affairs [2004] FCA 1162 followed Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 followed |
| Applicant: | SZJGV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2397 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 December 2006 |
| Date of Last Submission: | 12 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Byrne |
| Solicitor for the Respondent: | Ms Rose |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The title of the first respondent is changed to Minister for Immigration and Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2397 of 2006
| SZJGV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal handed down on 10th August 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The applicant seeks an order by way of certiorari quashing the decision of the Tribunal and an order by way of mandamus remitting his application for review to the Refugee Review Tribunal for determination according to law.
Background
The applicant is a citizen of China who arrived in Australia on
25th January 2006 and applied for a protection (Class XA) visa on
2nd February 2006. His application was refused on 9th March 2006.
On 6th April 2006 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.
Application for review by the Refugee Review Tribunal
The applicant submitted his application to the Tribunal on
6th April 2006. He did not submit any additional documents with the application. The Tribunal wrote to the applicant on 27th April 2006, inviting him to attend a hearing to give oral evidence and present arguments in support of his claims.
The applicant did not attend the original hearing, which was scheduled for 13th June 2006. He provided a medical certificate showing that he was unwell and would be “unfit for work/school” between
12th June and 16th June. The Tribunal wrote to the applicant on
14th June, inviting him to attend a postponed hearing on 23rd June 2006.
The applicant submitted a Response to Hearing Invitation on 21st June, advising that he required a Chinese interpreter and that he wished the Tribunal to hear evidence from a witness. The form said that the witness’s evidence would confirm that “the applicant is a Falun Gong practitioner”.
The applicant attended the Tribunal hearing on 23rd June 2006 and gave evidence that he took up the practice of Falun Gong at the end of 1996. He said he was afraid to return to China because of his practice of Falun Gong and because he had participated in protests in China.
After the hearing, the applicant provided to the Tribunal a copy of his passport and statements by three different people, two of which were dated 28th June and the other one was dated 29th June 2006. Each of the statements referred to the applicant’s practice of Falun Gong (or Falun Dafa) in Australia during the year 2006.
The Tribunal wrote to the applicant on 4th July 2006.[1] The letter was undated but was faxed to the applicant’s authorised recipient on
4th July 2006. The letter referred to certain pieces of information which the Tribunal said would, subject to any comments the applicant might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter referred to the two statements provided by the applicant, each dated 28th June 2006, relating to the applicant’s practice of Falun Gong. The letter said:
This information is relevant because the Tribunal may draw an adverse finding on the basis that you have engaged in conduct in Australia for the purpose of strengthening your claim to be a refugee within the meaning of the Convention.[2]
[1] A copy of the letter appears at pages 75 and 76 of the Court Book.
[2] Court Book page 75
The letter went to refer to the statement provided in support of the applicant’s application for a protection visa in which the applicant stated that he was summoned and questioned by the authorities for 4 times. The letter referred the applicant to his evidence before the
Tribunal where he stated that he was questioned “many times” between 1999 and his departure from China in 2006. The letter told the applicant that:
This information is relevant because the Tribunal may draw an adverse credibility finding on the basis of the inconsistencies between the information provided in your application for a protection visa and that provided for the purposes of the hearing.[3]
[3] ibid
The letter invited the applicant to comment on the information in writing and in English by 18th July 2006. The applicant replied to the letter by facsimile on 17th July 2006 in a one-page statement with a further statement from another Falun Dafa practitioner dated
4th July 2006.
A copy of the Tribunal’s decision record appears at pages 86 to 101 of the Court Book. The Tribunal set out the applicant’s claims and evidence on pages 89 to 93. It also referred to independent evidence about Falun Gong, the treatment of Falun Gong practitioners in China since 1999, and protests and demonstrations in China, at pages 93 to 97.
The Tribunal’s findings and reasons are set out at pages 97 to 101 of the Court Book. The Tribunal was satisfied that the applicant was a national of China and also accepted that Falun Gong practitioners constituted a particular social group in China for the purposes of the Refugees Convention. However, the Tribunal did not accept that the applicant was a Falun Gong practitioner or that he had participated in or staged protests in China. The Tribunal noted that:
At the hearing, whilst the applicant displayed some knowledge about Zhuan Falun and its contents, he was unable to carry out the fifth exercise when asked to do so, he did not know the verses that are recited before the exercises, he was unable to explain the principles behind the exercises and he could not name any of the exercises except exercise one.[4]
[4] Court Book at 98
The Tribunal went on to find that the applicant’s evidence at the hearing indicated that he began frequenting Falun Gong practice sites a month or two before the hearing and formed the view that the applicant’s Falun Gong-related activities in Australia were sur place claims and were therefore subject to s.91R(3) of the Migration Act.
The Tribunal did not accept that the applicant had participated in or conducted sit-ins, or was questioned, interrogated or harassed by the authorities. The Tribunal stated that it had regard to these reasons:
i)First, the appliicant’s claims regarding his protest activity and the authorities’ reaction are not consistent with the independent evidence before the Tribunal.
ii)Second, the applicant changed and shifted aspects of his evidence in the course of the hearing.
iii)Third, the totality of the applicant’s oral evidence shows a propensity to exaggerate and tailor his evidence in a manner which achieves his own purpose.
iv)In sum, the Tribunal considers that the applicant’s account of his activities in China lacks credibility.[5]
[5] Court Book 99
The Tribunal was satisfied that the applicant did not have a well-founded fear of persecution for a Convention reason and found that he was not a refugee.
The decision then goes on to make the following statement that is clearly contradictory to the Tribunal’s decision to affirm the delegate’s decision not to grant the applicant a protection (Class XA) visa:
Conclusions
The Tribunal is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant satisfies the criterion set out in s.36(2) for a protection visa.[6]
[6] Court Book at 100
The above statement, when considered in context, is clearly an error. The word “not” has clearly been omitted on two occasions. Nevertheless, Tribunal members need to be more careful when editing the text of their decisions before handing them down.
Application for judicial review
The applicant commenced proceedings for judicial review of the Tribunal decision by filing an application and an affidavit in support on 29th August 2006. In an amended application, filed in court on the day of the hearing, the applicant relies on the following ground:
The Tribunal found that the applicant “was not a Falun Gong practitioner in China since 1997 as he claims and that his interest in Falun Gong is a recent invention designed to assist him in his endeavour to remain in this country”. The Tribunal fell into jurisdictional error in relation to this finding. Specifically, the applicant gave evidence at the hearing which demonstrated that he had good knowledge and understanding of Zhuan Falun and Falun Gong teachings. Either the Tribunal did not properly have regard to this evidence, or else the Tribunal’s finding in relation to this matter was irrational, illogical and not based on findings or inferences of fact supported buy logical grounds.
There were no other grounds.
Submissions
The applicant was represented by Mr Byrne of counsel at the hearing, who submitted that there is a fine line between merits review and jurisdictional error. A jurisdictional fact is whether the applicant is a person to whom protection obligations are owed. He submitted that the Tribunal did not pay sufficient attention to the applicant’s supporting evidence.
In a written submission, it was put that it was a question whether the Tribunal properly had regard to the applicant’s evidence concerning Zhuan Falun and Falun Gong teachings. The applicant’s counsel referred the court to the decision of the Full Court of the Federal Court in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51, where Madgwick J, with whom Conti J agreed, stated at [212]:
A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration.
The submission goes to claim that whether a decision maker has “really and genuinely given consideration” to certain information depends on, among other factors:
(a)the degree of cogency or relevance of the information; and
(b)the words used by the Tribunal in dealing with the information.[7]
[7] Applicant’s written submission at [15]
The submission asserts that the applicant’s “impressive knowledge of Zhuan Falun and Falun Gong teachings” suggests that the Tribunal had not properly had regard to the applicant’s evidence about those matters.
The answer to that submission is that, whilst the applicant’s counsel submits that the applicant’s knowledge was “impressive”, the Tribunal clearly had a different view:
At the hearing, whilst the applicant displayed some knowledge about Zhuan Falun and its contents, he was unable to carry out the fifth exercise when asked to do so, he did not know the verses that are recited before the exercises, he was unable to explain the principles behind the exercises and he could not name any of the exercises except exercise one. Zhuan Falun and general information about Falun Gong is publicly available and the Tribunal considers it reasonable to expect the applicant to have more familiarity with and a more detailed knowledge about Falun Gong and Falun Gong exercises if he has been a Falun Gong practitioner since 1997.[8]
[8] Court Book at 98
In my view, the applicant’s first ground is no more than a challenge to the Tribunal’s findings of fact and, as Ms Rose, the solicitor for the Minister submitted, the applicant is clearly inviting the court to review the merits of the Tribunal’s decision. Merits review is not available on judicial review. Even if the findings of fact are wrong, there is no error of law, let alone jurisdictional error (Abebe v Commonwealth of Australia (1999) 197 CLR 510;162 ALR 1).
On the evidence before the Tribunal, it was open to the Tribunal to make the findings that it did. There is no jurisdictional error in the Tribunal’s finding and the applicant’s first ground fails.
The applicant’s second ground is that the Tribunal’s finding was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]). Mr Byrne submitted that in this case the actual mental process that the Tribunal went through was illogical.
The answer to this ground is that even if the Tribunal’s decision appears illogical, want of logic does not of itself constitute an error of law (NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [29] and [30]; S635 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1162 at [53]).
In any event, there is nothing illogical or irrational about the Tribunal’s reasoning in this case. The Tribunal’s findings were open to it on the evidence. The Tribunal formed the view that the applicant’s knowledge of Falun Gong was less than what would be reasonably expected from a practitioner of 10 years’ standing. The Tribunal also examined the statements provided by the applicant in support of his claim that he practises Falun Gong in Australia and noted that they showed very little except that he had engaged in the practice of Falun Gong only very recently. In one case, the Tribunal put to the applicant in writing that the statement of one person asserted that she met the applicant for the first time on 18th June 2006, five days before the hearing, and that she taught the applicant “how to practice the five sets of exercises”.[9]
[9] Court Book at 93
In short, there is no irrationality or illogicality shown in the Tribunal decision and no jurisdictional error. The applicant’s second ground fails.
Conclusions
Neither of the applicant’s grounds of review, contained within the one ground in the amended application, demonstrates any jurisdictional error. The Tribunal did not accept the credibility of a number of the applicant’s claims. As Ms Rose for the Minister submitted:
It is well established that findings of adverse credibility are findings of fact and, if there is evidence to support those findings, they are solely within the domain of the RRT and should not be disturbed on judicial review: see Minister for Immigration and Multicultural Affairs, Re; ex parte Durairajasingham (2000) 168 ALR 407.
With respect, I agree.
The Tribunal complied with the requirements of s.424A of the Migration Act by its letter to the applicant sent of 4th July 2006, and it considered the applicant’s comments in reply sent on 18th July 2006.[10]
[10] ibid
The Tribunal complied with the requirements of s.425 of the Act by inviting the applicant to attend a hearing and give evidence and present arguments in support of his case. The applicant attended on
23rd June 2006 and gave evidence with the assistance of an interpreter.
There is no jurisdictional error in the Tribunal’s decision, which is a privative clause decision as defined by s.474(2) of the Act.
The application will be dismissed with costs. I will order that the title of the First Respondent is changed to reflect the Minister’s current designation.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: May 2007
0
7
1