SZJNH v Minister for Immigration
[2006] FMCA 1850
•11 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJNH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1850 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China claiming fear of persecution as a Falun Gong practitioner – merits review – where applicant claimed that the Tribunal had failed to apply the correct test – whether Tribunal’s decision was heterodox – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 referred to NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 followed. Chan Yee Kin v Minister for Immigration and Ethnic Affair (1989) 169 CLR 379 followed. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 followed. |
| Applicant: | SZJNH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2970 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 December 2006 |
| Date of last submission: | 11 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms. Sirtes |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,800.00.
I allow twelve (12) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2970 of 2006
| SZJNH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant in this case applies for a review of the Refugee Review Tribunal that was signed on 21st September 2006 and handed down on 25th September 2006. The Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. By her application filed on 13th October 2006 the Applicant seeks orders quashing the decision of the Tribunal and remitting her application to the Tribunal for redetermination.
Background
The background to this matter is that the Applicant is a citizen of the People’s Republic of China. She arrived in Australia on 2nd October 2005 as a member of a tour group. She absconded from that group in Sydney a few days later and was detained by the Department of Immigration and Multicultural Affairs on 16th March 2006. She applied for a protection visa on 7th April but a delegate of the Minister refused to grant the visa on 13th April 2006. On 20th April the Applicant applied to the Tribunal for a review of the delegate's decision.
The Applicant originally appeared before the Tribunal on 27th July 2006 in company with her migration advisor who is a registered migration agent. On the day of the hearing the Applicant harmed herself and the hearing was adjourned and was resumed on 18th August 2006.
The Tribunal noted (and it appears at page 130 of the Court Book) that it provided additional time for the Applicant and her adviser at the conclusion of the hearing to meet and converse in confidence to facilitate any post hearing matters such as preparation of a submission.
The Tribunal allowed a period up to 25th August 2006 to refer the submission. On 23rd August 2006 the Applicant's adviser submitted some materials mainly going to the Applicant's stress and psychological condition and sought an extension of the deadline until 29th August 2006 to allow for any further submissions. The Tribunal extended the deadline to 31st August 2006 but no further material was submitted.
The Tribunal decision record is set out on pages 129-148 of the Court Book. The Tribunal sets out the Applicant's claims and evidence that relates to her fear of persecution in China as a result of her membership of the group known as Falun Gung and the fact that she has been for a number of years an adherent of that organisation.
The Tribunal set out references to independent information relating to Falun Gung and it appears on pages 132-140 of the Court Book. The Tribunal noted the Applicant's claim that she had been a devotee of Falun Gung for 10 years and noted the Applicant claimed that she had been divorced in the year 2000, and this was attributable to her continued adherence to Falun Gung. Subsequently, her work unit in a Department store made her redundant for the same reason. She took another job in the year 2000 and remained in this job until 2005 when she came to Australia.
The Tribunal noted the Applicant's claims that her Falun Gung friends had been arrested and that she had made arrangements to leave the country. The Tribunal noted that on 25th July 2006 the Applicant submitted through her adviser a petition signed by 14 immigration detainees attesting to the Applicant's practicing Falun Gung whilst she was incarcerated in the Villawood Detention Centre.
The Tribunal considered a further statement submitted by the Applicant and dated 24th June 2006 discussing her alleged teacher in the Falun Gung belief. The Tribunal asked the Applicant at the first hearing a number of questions about her claim and at the resumed hearing on 18th August 2006 the Tribunal asked the Applicant about the Falun Gung beliefs and in particular the exercises.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out in pages 146 and 147 of the Court Book. The Tribunal accepted that the Applicant was a national of the Peoples Republic of China and used to live in Heng Yang and worked there from 1998 until February 2005 for a state owned enterprise department store. The Tribunal considered but gave no weight to alternate versions of the Applicant's work or residential history. The Tribunal took the view that the Applicant stopped working for the department store in February 2005 and her cessation of work there had nothing to do with Convention-related factors.
The Tribunal gave no weight to letters submitted by the Applicant referring to her as a key Falun Gung practitioner in 1999. The Tribunal found certain parts of the Applicant's evidence unsatisfactory, particularly the depth of her knowledge of Falun Gung in the circumstances. The Tribunal noted that it made allowance for her nerves, her stress and the fact that she was on medication at the hearing of 18th August 2006.
The Tribunal was not satisfied that the Applicant's apparent embrace of Falun Gung was genuine and did not accept that she would continue to pursue her claimed interest in Falun Gung outside of the Villawood Detention Centre, whether in Australia or in the People’s
Republic of China or anywhere else.
The Tribunal was not satisfied that the Applicant faced a real chance of Convention-related persecution in China and found her claim appeared not to be well founded. Accordingly, the Tribunal found the Applicant did not satisfy the criterion set out in sub-s.(36)(2) for a protection visa.
The Application for Judicial Review
The Applicant filed her application on 13th October 2006 accompanied by an affidavit to which she annexed a copy of the Tribunal decision. In her affidavit she says:
I believe my ordeal in relation to fear or persecution has been existed in People’s Republic of China. The party National Congress of the Chinese Communist Party has also failed effective protection for witnesses who testified in cases.
The Police Department has always been violated in relation unlawful deprivation of life, degrading treatment respect liberties, integrity and human rights mandated by law in the United Nations Human Rights. Labour force has not yet been eradicated so that no one has brought to justice there.
The Applicant sets out in her application three grounds for review. First, she says that the Tribunal has failed to apply the correct test so it has constructively failed to exercise its jurisdiction. Second, the Applicant claimed that the Tribunal did not consider whether the Applicant had a well founded fear of persecution if she were to return to the People’s Republic of China. Third, the Applicant claimed that she had been distressed as to her situation at the moment because the Tribunal unreasonably rejected her claims based on a disproportionate fear of persecution of a member of Falun Gung.
The Tribunal had erred in finding in relation to Part 2, Division 3, Subdivision AL, section 91R, serious harm for the purposes of paragraph (1)(b) of the Migration Act 1958 related with 1A(2) of the Refugees Convention but the Tribunal had found that the visa applicant was not a person to whom Australia has protection obligations.
The Applicant attended the hearing and made a brief oral submission. She did not file a written outline of submissions. The Applicant made three points to the Court at the hearing. First, she said that the Refugee Review Tribunal said she was lying and they did not give her a chance to argue on that point. They should have given her a chance to argue against that. Second, the Applicant said that she was not a specialist or an expert of Falun Gung, she was just a practitioner. Third, the Applicant said that she was and is suffering severely from depression. She does not wish to see anybody and does not wish to go out. She does not wish to take medication.
Later in the hearing the Applicant asked why some people who went to the Refugee Review Tribunal had the opportunity to submit further written submissions. I note that the Applicant was given an opportunity according to the Tribunal to make further a written submission up to 31st August 2006. The Applicant confirmed that the medication upon which she was placed made her sleepy and she had referred that fact to her solicitor.
I note that on 23rd August 2006 the Applicant's solicitor wrote to the Tribunal and pointed out that in respect to the hearing on 18th August 2006, the Applicant had received psychiatric attention as a result of self harm and as part of her treatment she was required to take medication on the evening prior to her hearing. The medication made her extremely drowsy and disoriented and the Applicant's solicitor was instructed to bring this to the Member's attention as the Applicant felt that she was unable to respond to the Member's questions as well as she may have been able to but for the medication. Some documents were submitted in that same letter.
I have read the outline of submissions prepared by counsel for the Minister, Mrs Sirtes. The Applicant received a copy but indicated that she had not had a chance to read it as she does not read English.
I adjourned the proceedings to allow the interpreter to take the Applicant through the submission document and resumed once that had been done.
In respect to the Applicant's claims counsel for the Minister submits that there is nothing arising from the Tribunal's decision which indicated that the Tribunal constructively failed to exercise its jurisdiction. She submitted that the decision was a privative clause decision for the purpose of s.474 of the Act and therefore could only be set aside where there had been a failure to discharge imperative duties or observe inviolable limitations or restraints. (See Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476).
Her submission is that the Tribunal set out the Convention and the tests under the Convention and then went onto apply the Convention and that the finding that the Applicant was not a refugee did not constitute a destructive failure to exercise jurisdiction. There were no aspects of the Applicant's claims which were not considered.
Turning to the well founded fear ground, counsel for the Respondent submitted, that whilst the Tribunal was claimed by the Applicant not to have considered whether she had a well founded fear of persecution, it did in fact do so. I am referred to page 147 of the Court Book where the Tribunal expressed the view that the Applicant's claimed fear was not well founded. It is submitted that there was nothing heterodox (meaning not in accordance with established or accepted doctrines or opinions) in the manner in which the Tribunal arrived at this conclusion.
As to the third ground, the First Respondent is unable to comprehend the error that is alleged but points out that as to the claim that the Applicant was distressed at the hearing, first the Tribunal adjourned the hearing to another date after the Applicant had harmed herself, then reconvened the Tribunal for the further hearing where the Applicant attended and gave evidence. Third, took into consideration the claims of stress relating to the hearings which were referred to in the Applicant's supplementary submissions of 23rd August 2006 and the information provided that the Applicant had been under medication at the second hearing.
Counsel for the Respondent rejects the submission that the Tribunal's decision unreasonably rejected the Applicant's claims, submitting that the Tribunal's decision was properly reasoned and based upon all the materials claimed before it. Counsel also submitted that there was no finding in respect to a disproportional fear or persecution by a member of Falun Gung. The Tribunal had considered the Applicant's own practice of Falun Gung and the Tribunal did not accept that the Applicant's embrace of Falun Gung was genuine.
Whilst there is a mention of s.91R of the Migration Act, it is submitted that that can only be intended to allege a failure properly to apply the definition of persecution. It is submitted that this too is an attempt at merits review.
I have considered the material before me. I am not satisfied that the Tribunal failed to apply the correct test as set out in the first ground of the Applicant's submission. In my view the Tribunal in its decision sets out the relevant law and points relating to the definition of refugee. The Tribunal appears to have considered the matters referred to there and I am not satisfied that there is any jurisdictional error. There is nothing heterodox about the Tribunal decision.
As to whether the Tribunal did not consider whether the Applicant had a well founded fear of persecution if she were to return to the People’s Republic of China, in my view the Tribunal considered the evidence including the different versions of the Applicant's work history and considered that evidence quite thoroughly.
I agree that parts of ground 2 contain factual allegations as to what the applicant says would occur to her upon her return to China. That is to my mind no more than merits review and that is not available in a judicial review of a tribunal decision. I am referred to the decisions of NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10, Chan Yee Kin v Minister for Immigration and Ethnic Affair (1989) 169 CLR 379 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
Turning to the third ground, the Applicant claims that she was distressed at her situation and whilst that distress is understandable, especially as the Applicant has been in Immigration Detention for a number of months, in my view the Tribunal did give consideration for the Applicant's distress and allowed time for submissions and took into account the fact that at the second hearing in August she was under medication. Indeed, this Court has made some effort to hear this case as soon as possible as I note that this application and affidavit in support were filed on 13th October 2006.
The matter was first before the Court on the 30th October 2006. The application was listed for Final Hearing today in order to allow a reasonable amount of time to prepare the case but to avoid any delay which can be unduly distressing for a person who is in detention and not free to move about in the community.
The Applicant claims that the Tribunal unreasonably rejected her claims but I am not satisfied that any unreasonableness has been demonstrated, even if unreasonableness were a ground for review. In my view, the Tribunal's decision is a decision which was open to it based on the material before the Tribunal.
The balance of the ground may be seeking merits review but again I am not satisfied that this Court has the jurisdiction to reconsider factual matters which are properly the province of the administrative decision maker. As I said I am satisfied that it was open to the Tribunal on the evidence before it to form the view that it did. It is irrelevant whether the Court on considering the same evidence may have arrived at the same view or a different view. It is not the function of the Court on judicial review to reconsider factual matters that belong with the decision maker.
I am mindful of the fact that whilst the Applicant has previously been legally represented and had some legal assistance on the First Court Date and was referred to the Refugee Review Tribunal Legal Advice Panel Scheme, she was not legally represented at the hearing today.
I have considered the material before me in an effort to ascertain independently of either the Applicant's submissions or the Respondent's submissions whether any jurisdictional error maybe discerned.
I am not able to discern any other jurisdictional error and in my view there is no jurisdictional error. The Tribunal decision is therefore a privative clause decision as defined by sub-s.474(2) of the Migration Act. Consequently, it is final and conclusive and not subject to any order in the nature of certiorari or mandamus. It follows that the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister in the sum of $3,800.00 including counsel's fees. It is certainly a figure that is appropriate and the Applicant has been wholly unsuccessful in her claim. It does appear to me that the Applicant having been in Immigration Detention since March is in no position to meet any of that amount and would be unlikely to be in a position to do so within the reasonably foreseeable future.
Whilst I am of the view that the likelihood of these costs being met is low, it is probably not a reason for not making an order for costs. I will order that the Applicant pay the First Respondent's costs in the sum of $3,800.00.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 14 December 2006
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