SZJLD v Minister for Immigration
[2007] FMCA 252
•14 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJLD v MINISTER FOR IMMIGRATION | [2007] FMCA 252 |
| 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 fear of persecution on the basis of his practice of Falun Gong – allegation of bias – whether Tribunal complied with Migration Act 1958 (Cth) s.424A – irrationality and illogicality – whether Tribunal had a rational and logical foundation for rejecting the Applicant’s claim – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91R, 424A, 474 |
| M153 of 2004 & Ors v Minister for Immigration [2006] FMCA 42 Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 26 NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 NATC v Minister for Immigration & Indigenous Affairs [2004] FCAFC 52 S20 of 2002 v Minister for Immigration (2003) 198 ALR 59 S635 of 2003 v Minister for Immigration & Indigenous Affairs [2004] FCA 1162 SAAP v Minister for Immigration & Multicultural Affairs [2005] HCA 24 SBBS v Minister for Immigration & Indigenous Affairs [2002] FCAFC 361 SZDTZ v Minister for Immigration & Anor [2006] FMCA 1709 SZEEO v Minister for Immigration [2005] FMCA 1177 SZIBR v Minister for Immigration & Anor [2006] FMCA 1490 SZIED & Anor v Minister for Immigration & Anor [2006] FMCA 1459 |
| Applicant: | SZJLD |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | SYG 2774 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 February 2007 |
| Date of last submission: | 14 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the first respondent is changed to Minister for Immigration & Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,800.00 and I will allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2774 of 2006
| SZJLD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 15 August 2006 and handed down on 5th September. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (class XA) visa.
The applicant is a citizen of the People’s Republic of China and has been found to be a national of that country by the Tribunal. He arrived in Australia on 21 February 2006 and applied for a protection
(class XA) visa on 15 March. He claimed that he feared returning to China because he is a Falun Gong practitioner. A delegate of the Minister refused his application for a visa on 13 April 2006. On
17 May the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. The Tribunal wrote to the applicant and invited him to attend a hearing of the Tribunal. The applicant appeared before the Tribunal on 29 June 2006 where he gave evidence in support of his case. He had the assistance of an interpreter in the Mandarin language.
He produced a copy of his passport issued by the People’s Republic of China. The applicant told the Tribunal of his practice of Falun Gong and his fear of returning to China because he is a Falun Gong practitioner. He told the Tribunal that he was arrested and detained. He claimed that he practised Falun Gong only at other people’s homes or at secret places. The Tribunal asked the applicant a number of questions about his practice of Falun Gong in China. The Tribunal asked him to write down the five Falun Gong exercises and put to him its concerns that he did not seem to be familiar with the exercises which would tend to indicate that he was not a genuine Falun Gong practitioner. The applicant told the Tribunal that his mind was dizzy.
The Tribunal put to the applicant that it was having difficulties with his story because of the inconsistencies between the claims in his statement to the department and his claims at the hearing.
The applicant told the Tribunal that the inconsistencies in his evidence may be because of problems in interpreting. After the hearing the Tribunal wrote to the applicant on 3rd July. The letter that was written was a letter under the provisions of s.424A of the Migration Act.
The letter covers some three and a half pages in the Court Book from pp.65 through to 68. In that letter the Tribunal put a number of items of information to the applicant and explained why the Tribunal considered that information was relevant.
The Tribunal asked the applicant to comment in writing on the information by 26 July 2006. The Tribunal reports that it did not receive any reply to this letter. I asked the applicant about that letter and he said that he had never received it, although I note that it was sent to the mailing address that he gave for the purpose of the application to the Refugee Review Tribunal.
The Tribunal’s decision record appears at pages 74 through to 94 of the Court Book. The findings and reasons appear on pages 90 through to 94. Whilst the Tribunal accepted that the applicant was a national of the People’s Republic of China and it assessed his claims against that country, the Tribunal notes at page 90 of the Court Book that it did not find the applicant to be a credible or truthful witness.
The Tribunal set out reasons why the Tribunal was not satisfied about the applicant’s credibility, which included inconsistencies in the applicant’s story and claims made by the applicant about Falun Gong which were not consistent with independent information before the Tribunal.
The Tribunal formed the view, and said so at page 91 of the Court Book that the applicant’s evidence at the hearing indicated a lack of knowledge of the history, principles and practice of Falun Gong.
The Tribunal noted that when the applicant was asked to write down the names of the five Falun Gong exercises he could only name the first two of them. The Tribunal put to the applicant at the hearing its concerns about the inconsistencies between the claims in his statement to the department and his claims at the hearing, and noting that the applicant complained of interpreting problems, complained of being nervous and complained that his mind was dizzy.
The Tribunal did not accept these explanations, claiming that the applicant only raised these problems when he was unable to provide information about the teachings and practice of Falun Gong.
The Tribunal formed the view that the applicant only suggested that there were interpreting problems and raised his nervousness and state of mind to overcome the serious flaws in his evidence. The Tribunal did not accept that the applicant was a Falun Gong practitioner in China and did not accept that the applicant was detained in China or that the police suspected he was a Falun Gong practitioner or that he was monitored by the PSB.
The Tribunal formed the view at page 93 of the Court Book that the applicant had fabricated those claims in order to bring himself within the definition of a refugee. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and affirmed the decision not to grant the applicant a protection visa.
The applicant commenced proceedings for judicial review in this Court on 28th December 2006. He filed a document in the form of an amended application under the heading “A Submission”. I indicated at the hearing that whatever the title of the document, I would give consideration to the matters contained in it as going to the applicant’s case. In the document the applicant sets out three grounds for review, being:
(1) The Tribunal failed to carry out its statutory duty.
(2) The Tribunal had bias against the applicant and could not consider his application according to s.91R of the Migration Act.
(3) That the Tribunal’s satisfaction that he was not a refugee was not based on a rational and logical foundation for that belief.
In support of the first ground, the applicant set out references to SAAP v Minister for Immigration & Multicultural Affairs [2005] HCA 24 and Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 26. The particulars contain quotes from those cases relating to the application of s.424A of the Migration Act. The submission, at least insofar as the first ground is concerned, is clearly based on a generic precedent circulating in the community and it is one that Federal Magistrates have seen on many occasions. It is particularly noticeable due to the misdescription of the citation of SAAP (supra) and the apparent belief that it was handed down on 18 May 2001. It also contains a misuse of an apostrophe which figures in
sub-paragraph (e) of all of this generic ground. It is sufficient to say that the references to a breach of s.424A of the Migration Act are not directly relevant to the case before me.
The applicant made oral submissions to the Court, some of which replicated those matters that he had contained in his written submission. He said the following:
i)The Tribunal failed to consider his application according to s.91R of the Migration Act.
ii)The Tribunal had bias against him.
iii)That the Tribunal had failed to refer to independent information.
iv)That the Tribunal failed to take into account the provisions of s.424A of the Migration Act and refused his application without giving him an opportunity to comment.
v)That the Tribunal had failed to comply with the provisions of the Migration Act 1958.
vi)That the Tribunal failed to notify him in writing about the reasons for the Tribunal’s decision, and he referred the Court to the decision of the High Court of Australia in SAAP at [208].
vii)That the Tribunal had failed to carry out its statutory duty.
viii)That the Tribunal had misunderstood his application.
I asked the applicant to clarify those submissions. In particular, I pointed out to him that notwithstanding his claim that the Tribunal had failed to consider his application according to the provision of s.91R of the Migration Act, that the Tribunal had set out on almost an entire page at page 76 of the Court Book the requirements that an applicant must fear persecution and the definition of “persecution” and referred specifically to the provisions of s.91R.
The applicant told the Court that the reason why he said that the Tribunal was biased against him was because the Tribunal did not accept his argument. I asked the applicant why he said that the Tribunal had failed to refer to independent information when it was clear from the Court Book that the Tribunal had set out on some seven pages information about the origins of Falun Gong, the guiding principles of Falun Gong, the exercises and movements, the history, the doctrines and practices, the structure of the organisation and the reaction of the government of the People’s Republic of China to Falun Gong. That detailed description appears on pages 83 through to 89 of the Court Book.
The applicant maintained his claim that the Tribunal had failed to take into account the provisions of s.424A of the Migration Act, although I asked him to comment on the fact that the Tribunal had written to him on 3rd July 2006 in a lengthy letter which certainly appears to comply strictly with the requirements of s.424A, a letter to which the applicant did not reply. The applicant said that he had not received that letter, although the letter was sent to his mailing address set out in the application for review. The applicant went on to say that he had not received other letters sent to that address.
The applicant was not able to provide any particulars of the failure to comply with the Migration Act that he claimed other than the breach of s.424A to which I have already referred. When asked how the Tribunal misunderstood his application the Tribunal referred to circumstances relating to a breach of s.424A, and as far as a failure to carry out its statutory obligation, that again referred to s.424A.
The applicant did not refer in his oral submission to his claim that the Tribunal’s satisfaction that he was not a refugee was not based on a rational or logical foundation for his belief, but I accept that as part of his claim. I had the opportunity of reading the submissions prepared by the solicitor for the respondent Minister. I note that those submissions were prepared without the solicitors having the benefit of the document entitled “Submission” filed by the applicant on
28th December. It appears that a copy of that document may not have been served on them. In any event, I made a photocopy of the document available and Ms Mansour, solicitor for the first respondent, made oral submissions which covered the matters. Indeed the outline of submissions dealt with most of the subject matter in any event.
In my view, there is no evidence of any breach of s.424A of the Migration Act. The Tribunal wrote a lengthy and detailed letter to the applicant after the hearing setting out in detail information which, subject to the applicant’s comments, would be the reason or part of the reason for affirming the delegate’s decision. That letter explained to the applicant why the information was relevant and asked him to comment upon it. The applicant did not reply. It seems strange that he did not receive that letter at an address which he had nominated as an address for correspondence, although he said that it was an address of a friend of his. In my view, the Tribunal has complied with its obligations under s.424A of the Migration Act.
There is no evidence of bias. All too often allegations of bias are made against the Tribunal based on nothing but the fact that the Tribunal made a decision adverse to the applicant. That does not prove bias. Bias is a serious allegation, as set out by the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361. It is serious because it is an allegation of personal fault on the part of the decision-maker. It should not be lightly made and it must be clearly alleged and proved. All too often, as in this case, an allegation of bias is lightly made and made without any foundation whatsoever. This is such a case. There is just no evidence of bias at all. Applicants do not do themselves any favours by making unfounded allegations of bias.
The claim that the Tribunal did not consider the application according to s.91R of the Migration Act is at odds with the description of s.91R and the definition of “persecution” set out in the Tribunal decision. The applicant’s submissions generally appeared to bear no relation to the substance of the Tribunal decision. The Tribunal clearly considered s.91R and considered its duty to assess the application.
Accordingly, that ground fails.
Again the applicant claimed that the Tribunal’s satisfaction that he was not a refugee was not based on a rational and logical foundation for this belief. Lack of logic per se does not indicate jurisdictional error. There have been numerous cases where applicants have submitted that the Tribunal’s decision is irrational or illogical. The Full Court of the Federal Court has held that want of logic does not of itself constitute an error of law (see NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52; see also M153 of 2004 & Ors v Minister for Immigration [2006] FMCA 42). In NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [29] and [30] the Full Court of the Federal Court held that there is nothing in the remarks of the High Court in S20 of 2002 (2003) 198 ALR 59 that would warrant a departure from the earlier line of decisions in the Federal Court that illogical reasoning does not in itself constitute an error of law or jurisdictional error (see also SZEEO v Minister for Immigration [2005] FMCA 1177 at [13] and [14]; also S635 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1162 at [53]; also SZIBR v Minister for Immigration & Anor [2006] FMCA 1490 at [41] to [43]; SZIED & Anor v Minister for Immigration & Anor [2006] FMCA 1459 at [42]; and SZDTZ v Minister for Immigration & Anor [2006] FMCA 1709 at [30]). The third ground does not establish any jurisdictional error.
As to the matters that the applicant raised in his oral submissions to the Court, I have already dealt with the issue of alleged bias and the claim of a failure to consider the application according to s.91R. I have already considered the fact that there is no breach of s.424A of the Migration Act. The applicant’s claim that the Tribunal did not refer to independent information is clearly wrong. The Tribunal spent seven pages of its decision referring to independent information which was relevant to the matters before it. There is no other breach of the Migration Act disclosed. There is no failure to notify the applicant under the provisions of s.424A or any failure to carry out the Tribunal’s statutory obligation.
There is no evidence that the Tribunal misunderstood the application. The applicant’s real complaint against the Tribunal is that the Tribunal did understand his application only too well. He claimed to fear persecution in China because he was a Falun Gong practitioner and on his own evidence before the Tribunal he displayed such a lack of basic knowledge that it was quite clear to the Tribunal that it could make a finding that he was not and never had been a Falun Gong practitioner. A finding of credibility is a matter for the Tribunal and, in my view, there was ample evidence for the Tribunal to be satisfied that the applicant was not a witness of credibility.
There is no jurisdictional error. I am mindful of the fact that the applicant is not legally represented. I am unable to discern any jurisdictional error or any suggestion of one. The decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act and as such enjoys the protection given by sub-s.474(1) of that Act. It follows that the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister. The amount sought is $4,800.00, which, in my view, is within the scope of the scale provided by the Federal Magistrates Court Rules. The applicant said that he cannot afford the sum of $4,800.00 and that may well be so. It is not; however, a reason not to make an order for costs in favour of a successful party. The applicant, as I said, has been wholly unsuccessful and indeed the submissions to the Court bore very little relation to the case before the Court.
I propose to make an order that the applicant is to pay the first respondent’s costs in the sum of $4,800.00. I will allow three months to pay.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 22 February 2007
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