SZJSQ v Minister for Immigration
[2007] FMCA 390
•7 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 390 |
| 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 and claims persecution for reasons of his belief in Falun Gong – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 474 |
| SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 |
| Applicant: | SZJSQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3427 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 March 2007 |
| Date of Last Submission: | 7 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Ms McWilliam |
| Solicitors for the Respondents: | 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 $3,700.00 and I will allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3427 of 2006
| SZJSQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application to review a decision of the Refugee Review Tribunal. The decision was signed on
29th September 2006, and it was handed down on 24th October.
The Tribunal affirmed the decision not to grant to the applicant a protection (Class XA) visa. By means of his application and affidavit filed on 21st November 2006, the applicant seeks judicial review of the Tribunal decision. In his application, he asks for orders in the nature of certiorari, quashing the Tribunal's decision, and, in the nature of mandamus, compelling the Tribunal to redetermine the matter according to law. I note that the order that the applicant actually seeks is for a writ of mandamus
Compelling the Tribunal to rehear and redetermine the matter according to law.
In my view, the application for that order is misconceived, as an order in the nature of mandamus requires a redetermination, but the question of whether or not there is a further hearing is a matter for the Tribunal itself.
The background to this matter is that the applicant is a citizen of the People's Republic of China. He arrived in Australia on
20th February 2006. He applied for a protection (Class XA) visa on
5th April 2006, claiming a fear of persecution if he were to return to China, on the basis that he is a practitioner of Falun Gong.
The application for a visa was refused on 27th May 2006. One month later, on 27th June, the applicant applied to the Refugee Review Tribunal for a review of that decision. The application for review did not come accompanied by any further documentary evidence.
The Tribunal wrote to the applicant and acknowledged the receipt of his application, and, on 5th July 2006, the Tribunal wrote again, inviting the applicant to attend the hearing on 4th August 2006.
The applicant attended that hearing. He provided copies of his passport and some other documentation. He gave evidence with the assistance of an interpreter in the Cantonese language. He told the Tribunal about the fact that he had left China, because the Chinese government persecuted him, as he practised Falun Gong. He said that he had been a practitioner since 2002.
The Tribunal asked the applicant a number of questions about his application for a visa was prepared and about his employment history and about his family. The Tribunal decision, which can be found at pages 76-91 of the Court Book, contains a detailed account of the applicant's evidence given at the oral hearing. That account appears at pages 80-83 of the Court Book.
After the hearing, the Tribunal forwarded a notice to the applicant under the provisions of s. 424A of the Migration Act. That notice was in the form of a letter posted on 9th August 2006, and it had a heading, "Invitation to Comment on Information". The letter referred to a number of matters in the applicant's protection visa application and in his statement to the department. It referred to independent information before the Tribunal about the sustained government crackdown on Falun Gong practitioners in China, and it referred to a number of claims made by the applicant to the Tribunal at the hearing. The letter invited the applicant to comment on that information, in writing, in English, by 1st September 2006. The letter informed the applicant that, if he did not give comments by 1st September 2006, the Tribunal may make a decision on the review of his case without further notice.
The Tribunal noted, at page 83 of the Court Book, that it had received no response from the applicant about the s. 424A letter.
The Tribunal relied on independent country information about religious freedom in China and the origins of Falun Gong. A summary of that independent country information appears at pages 83-88 of the Court Book. The Tribunal's findings and reasons are set out on pages 88‑91 of the Court Book.
The Tribunal accepted that the applicant was a national of the People's Republic of China, and assessed his claims against that country.
The Tribunal had the evidence of the applicant's Chinese passport on which to base that finding. The Tribunal noted the applicant's claims that he feared returning to China because he was a Falun Gong practitioner, but did not find the applicant to be a credible or truthful witness. The Tribunal then set out, on pages 88-91, detailed reasons as to why the Tribunal did not find the applicant to be a credible or truthful witness.
I will summarise these reasons as: (1) The applicant's evidence at the hearing indicated a lack of knowledge of Falun Gong's principles; (2) The applicant's evidence at the hearing indicated a lack of knowledge of Falun Gong's practice; (3) There were changes to the applicant's story at the hearing, as to when he started to practise Falun Gong; (4) The evidence the applicant provided about how he practised Falun Gong in China was not consistent with the independent information; and, (5) The evidence the applicant provided about how the authorities treated him when they arrested him for being a Falun Gong practitioner was not consistent with the independent information.
The Tribunal went on to find, at page 91 of the Court Book:
Taking into account all of the evidence, the Tribunal does not accept that the applicant was a Falun Gong practitioner in China. The Tribunal does not accept that the applicant was detained in China. The Tribunal is of the view that the applicant has fabricated these 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 a protection visa.
In his application for review, the applicant sets out the following grounds. He claimed the Tribunal decision was affected by jurisdictional error: (a) because the Tribunal took into account an irrelevant consideration; (b) because the Tribunal failed to afford the applicant procedural fairness; and, (c) the Tribunal acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning.
The applicant set out the following particulars:
The RRT found the applicant is not a genuine Falun Gong practitioner. The Tribunal erred in making such finding.
The Tribunal concluded that the applicant has not practised Falun Gong in Australia, so there is no real chance that he will be subject to persecution if he returns to China. The Tribunal erred in making such finding, because the applicant will be subject to persecution, due to his previous involvement with Falun Gong prior to his arrival in Australia. Whether or not he has practised in Australia is irrelevant.
The applicant filed an affidavit simultaneously with his application, and he annexed a copy of the Tribunal decision to that affidavit. In his affidavit he makes the following claims:
(1) I would like to apply for judicial review of the RRT's decision on my application for a protection visa, because the RRT's decision contains jurisdictional error.
(2) RRT found that I am not a person to whom Australia has protection obligation. RRT erred in making such finding.
(3) I wish the Court can make an order requiring the RRT to reopen my case.
The applicant did not file any further documents. The solicitors for the respondent Minister filed a written outline of submissions, which were prepared by Ms McWilliam of counsel. The submissions point out that the Tribunal did not find the applicant to be a credible or truthful witness, and takes issue with the grounds contained in the application.
The applicant has attended Court and was not able to add any oral submissions to what was contained in his application. In oral submissions to the Court, Ms McWilliam pointed out to the Court that credit was clearly an issue in this case, and noted that the question of the applicant's credit had been specifically referred to by the Minister's delegate, and noted that, at page 42 of the Court Book, the delegate was not satisfied about the credibility of the applicant's claims to have been associated with Falun Gong whilst residing in China.
The Tribunal, of course, made similar findings about the credibility of the applicant's evidence, based largely on the applicant's evidence at the hearing.
In reply, the applicant told the Court that he was a Falun Gong practitioner and that he and his family had been harmed by the Chinese government. He said that he feared that if he went back to China his life would be at risk.
The first point to be made is that the particulars of the applicant's grounds in his application and his submissions to the Court today both relate to the factual matters before the Tribunal. In effect, the applicant is seeking to challenge the merits of the Tribunal decision. That, of course, is not a matter that the Court can take into account.
The position of the Court, in conducting judicial review of decisions of the Refugee Review Tribunal, was, with respect, clearly and succinctly, set out in the judgment of Gyles J in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205, where his Honour said at [3]:
Insofar as the Federal Magistrates Court is concerned, it has no role to second-guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.
Turning to the grounds of the application, the applicant claims that the Tribunal took into account an irrelevant consideration. He was not able to clarify to the Court as to what irrelevant consideration was taken into account but Ms McWilliam of counsel, in her submission, took the view that the particulars suggested that the applicant consider the issue of whether he practised Falun Gong in Australia to be irrelevant.
She submitted that the Tribunal took that evidence into account in assessing whether the applicant had practised Falun Gong upon his return to China, and this was part of its assessment as to whether there was a real chance the applicant would face persecution if returned to China. Counsel submits, and correctly, in my view, that there was no error in that approach. The finding was open to the Tribunal on the evidence before it.
As to the second ground, the claim that the Tribunal failed to afford the applicant procedural fairness, the applicant did not provide any particulars in relation to this ground, either in the application or in his submission to the Court. I am not able to discern any lack of procedural fairness. The Tribunal invited the applicant to attend the hearing in plenty of time. The Tribunal provided, as requested, an interpreter in the Cantonese language. The Tribunal wrote to the applicant, under the provisions of s. 424A of the Migration Act, making known to him details of information, which may be the reason, or part of the reason, for affirming the delegate's decision, and invited him to comment upon it. The applicant chose not to comment. There is no evidence before me of any failure to provide procedural fairness.
The third ground complains that the Tribunal acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning. First of all, I am not satisfied that there is any evidence of illogicality in the Tribunal's reasons. The Tribunal's decision was based upon the evidence before it and independent country information. In any event, illogicality is not, of itself, a jurisdictional error and is not a ground for review. There are no particulars given as to why or how the Tribunal acted capriciously or arbitrarily and, in my view, there is no evidence of it. The Tribunal's decision, to my mind, is a clear and logical setting‑out of the evidence, both from the applicant and independent country information, and the Tribunal sets out why the applicant was not regarded as a credible witness.
Credibility is a factual decision and is a matter for the administrative decision‑maker. I am satisfied that there was evidence upon which the Tribunal was able to make a finding that it did not consider that the applicant's evidence about his practice of Falun Gong, which was the basis of his claim for a protection visa, was credible, and there is evidence upon which the Tribunal was entitled to find that it should not accept the applicant's claim.
The applicant is not legally represented. I have read through the Tribunal decision, in order to ascertain whether there is any arguable case for any other jurisdictional error not referred to by the applicant.
I am unable to discern any jurisdictional error. As there is no jurisdictional error, the Tribunal decision is a privative clause decision, as defined in sub-s. 474(2) of the Migration Act and it is, therefore, not subject to orders in the nature of a certiorari or mandamus. It follows that the application must be dismissed.
There is an application for costs on behalf of the Minister, in the sum of $3,700.00. The amount sought is clearly within the scale provided by the Federal Magistrates Court Rules. Against this, however, the applicant puts to the Court that he is currently in great financial difficulties and cannot afford to pay his own expenses. He asks for an exemption from costs.
The applicant has been wholly unsuccessful in his claim, and it is hardly surprising that the Minister seeks an order for costs.
Financial difficulty is not, of itself, a ground for not making a costs order in favour of the successful party. I will, however, take that matter into account in allowing time to pay.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 19 March 2007
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