SZJTO v Minister for Immigration

Case •

[2007] FMCA 450

•

13 March 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJTO v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 450
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 – Falun Gong – credibility – bias – no reviewable error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.91R, 424A, 425
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205
NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10
VTAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 91
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Applicant: SZJTO
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3511 of 2006
Judgment of: Scarlett FM
Hearing date: 13 March 2007
Date of last submission: 13 March 2007
Delivered at: Sydney
Delivered on: 13 March 2007

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Nesbitt
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Citizenship.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3511 of 2006

SZJTO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application to review a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 13 October 2006 and handed that decision down on 2 November.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) Visa. 

  2. On 27 November 2006 the Applicant filed an application and an affidavit seeking judicial review of the Tribunal's decision from this Court. He filed an amended application on 15 February in which he seeks orders setting aside the decision of the Refugee Review Tribunal and directing the Tribunal to reconsider his application. He asks that the consideration of his case be conducted by a different Member of the Tribunal.

Background

  1. A brief background to this matter is that the Applicant is a citizen of the People's Republic of China who arrived in Australia on 16 August 2005. He applied for a Protection (Class XA) Visa on 13 September 2005. On 9 November 2005 a delegate of the Minister refused that application. The Applicant then sought a review of the delegate's decision from the Refugee Review Tribunal.  The Tribunal affirmed the delegate's decision on 3 February 2006.  The Applicant then sought judicial review of that decision from the Federal Magistrates Court. 

  2. On 12 July 2006 the Court set the Tribunal decision aside and admitted the application to the Refugee Review Tribunal for determination according to law.  The Tribunal wrote to the Applicant on 15 August 2006 inviting him to attend a hearing.  The following day the Tribunal wrote two letters to the Applicant inviting him to provide information in support of his case and inviting him to comment on certain information. The Applicant completed a Response to Hearing Invitation, indicating that he wished to attend and on 5 September the Tribunal wrote to the Applicant again asking him to comment on certain information. 

  3. On 7 September 2006 the Applicant wrote to the Tribunal providing comments and requesting an extension of time to provide further information. The Applicant attended the hearing of the Tribunal on


    12 September 2006. He gave evidence with the assistance of an interpreter in the Mandarin language. The basis of the application is that the Applicant claims to be a Falun Gong member and fears persecution if he returns to China on the basis of his membership. 

  4. The Applicant provided a copy of his passport to the Tribunal, told the Tribunal that he commenced practising Falun Gong in 1996 and later came to the attention of the authorities in China after Falun Gong had been banned.  He said that he was arrested in 2003 and said that he was detained for a long time and was beaten. He told the Tribunal that he left China legally and had no trouble obtaining a travel document.  Since he has arrived in Australia he has not had the leisure time to practise Falun Gong.  He said that in China he had been a key member of Falun Gong because he organised people to practise. 

  5. The Tribunal's decision record can be found at pages 122 through to 137 of the Court Book.  The Tribunal referred to independent country information, particularly about Falun Gong and the practise of Falun Gong in China and the Tribunal's account of that independent country information can be found at pages 132 through to 134.  The Tribunal's findings and reasons are to be found on pages 135 to 137 of the Court book.

The Tribunal’s findings and reasons

  1. The Tribunal accepted that the Applicant is a national of the People's Republic of China based on, amongst other things, the Applicant's Chinese passport. The Tribunal noted the Applicant's claim to have joined Falun Gong in 1996 and to have organised major Falun Gong activities.  However, the Tribunal found that it was unable to accept any of the Applicant's claims. The Tribunal sets out the reasons why it did not accept the Applicant's claims to be a Falun Gong member. 

  2. The Tribunal stated that the Applicant did not know at the hearing that there were five main Falun Gong exercises and was unable to name them. The Tribunal noted that the Applicant said that he was not practising Falun Gong in Australia.  The Tribunal found, and it appears at page 136, that the Applicant was involved in deceiving the Australian authorities into granting him a visa to Australia. The Tribunal went on to find:

    Because of this finding and the previous similar findings regarding the applicant's credibility, the Tribunal finds that the applicant is not credible.

    The Tribunal found that the Applicant was not a Falun Gong practitioner and had never been a Falun Gong practitioner.

  3. Accordingly, the Tribunal was not satisfied that the Applicant faced a real chance of persecution should he return to the People's Republic of China at that stage or in the foreseeable future. The Tribunal affirmed the delegate's decision not to grant the Applicant a protection visa. 

The Application for judicial review

  1. The Applicant seeks orders setting aside the Tribunal decision and having his application remitted to the Tribunal for reconsideration and determination according to law. He sets out five grounds of his application.  I asked him to elaborate on three of the grounds which he set out but he was unable to do so and did not answer any of the questions.  I offered the Applicant the opportunity to address the Court generally on matters relating to his case but he appeared to be unable or unwilling to do so. 

  2. A copy of the outline of submissions from the solicitors for the First Respondent had been made available to the Applicant prior to the hearing and a copy was translated to the Applicant by the interpreter immediately prior to the hearing.  Ms Nesbitt, solicitor, who appeared for the Minister, in the light of the lack of additional information provided by the Applicant, was, not surprisingly, content to rely on the written submissions. In any event, the Applicant was offered the opportunity to address the Court in reply but was unable or unwilling to do so. 

  3. I will deal with the grounds of the application. 

    i)The Tribunal refused my application for a protection based on some wrong information.

    The short answer to that is that not only is the wrong information particularised but it would appear to me to be a challenge to the factual findings of the Tribunal. The Court does not conduct a merits review of the tribunal's decision. As Giles J said recently in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at three:

    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.

    The first ground has no substance.

  4. The Applicant's second ground:

    ii)The decision was not made according to s.91R of the Migration Act 1958. The decision was not supported by evidence or materials.

    I asked the Applicant about this ground but he provided no further details and the Applicant has not filed any written submission. In dealing with that ground I note that the Tribunal in its decision referred specifically to s.91R of the Migration Act and set out the Tribunal's understanding of the meaning of persecution according to that section. This appears at page 124 of the Court Book. In my view the Tribunal applied the definition of persecution and serious harm correctly and according to s.91R.

  5. The second part of the ground, the claim that the decision was not supported by evidence or materials misconceives the function of the Tribunal. Under s.65 of the Act it is incumbent upon an applicant for a visa to satisfy the Tribunal that the Applicant meets the criteria for that visa. If the Tribunal is not so satisfied then the Tribunal will not grant the application. The Tribunal does not require evidence or other material to support a finding that it is not satisfied that the Applicant meets the criteria for a visa.  In any event, it is clear from the Tribunal decision that the reason why the Tribunal was not satisfied was that the Tribunal did not find the Applicant to be a credible witness. The Tribunal in its findings and reasons made serious criticisms of the Applicant's credibility as a witness. The Applicant's second ground fails. 

  6. The third ground is:

    iii)That the Tribunal relied on irrelevant information for the consideration of the Applicant's application.

    No particulars are provided of this irrelevant information and in my reading of the decision I cannot discern any information referred to by the Tribunal that appears on its face to be irrelevant.  This ground must fail. 

  7. The fourth ground says this:

    iv)The Tribunal relied on out of date information for the consideration of my application.

    Again; no particulars are provided of this out of date information and when I asked the Applicant about this point he was unable or unwilling to reply. Certainly my independent reading of the Tribunal decision does not indicate any information relied on by the Tribunal that was clearly out of date.  The lawyers for the Minister at paragraph 13 of the written submission, state the law correctly when they say:

    The choice and assessment of country information is a factual matter for the Tribunal and it is not obliged to inquire into more recent country information.

  8. I am referred to the decision of NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 at [11] – [13], VTAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 91 at [41] and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29. As there is no identified out of date information and even if there were, that is a factual matter for the Tribunal, I am satisfied that ground four must fail.

  9. Ground five alleges bias; saying as follows:

    v)The Tribunal did not consider my application for a protection visa according to Migration Act 1958 because of the Tribunal's bias against me.

    The Applicant, when asked, was unable or unwilling to add to that statement and I am not able to identify anything in the decision or in the supporting information that would indicate bias.  The Full Court of the Federal Court has made it quite clear in a number of decisions, not least SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 that:

    An allegation of bias or bad faith is a serious matter and should not be lightly made.  It must be clearly alleged and proved. The circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme and this is especially so when all that the applicant relies upon is the written reasons for the decision under review.

    I refer to paragraphs [43] and [44] of the decision of their Honours, Tamberlin, Mansfield and Jacobson JJ.  There is no evidence of bias. 

  10. I have looked at the Tribunal decision independently of the Applicant's application in order to ascertain whether any arguable case of jurisdictional error can be made. I note that the Tribunal wrote to the Applicant inviting his comment on certain information. The Tribunal wrote to the applicant on 16 August and 5 September 2006.  A further copy of the letter of 5 September 2006 was provided to the Applicant by hand at the Tribunal hearing on 12 September 2006.  In each case the letter is headed: "Invitation to comment on information."  In each case the letter sets out certain information and in each case the letter sets out why the Tribunal considers the information is relevant to the review.  In each case the letter invites the Applicant to comment on the information in writing and in English. 

  11. I am satisfied that these letters comply with the requirements of s.424A of the Migration Act. There is no breach of s.424A of the Act. The Tribunal invited the Applicant to attend the hearing in plenty of time and the Applicant attended and gave evidence with the aid of an interpreter. I see no breach of s.425 of the Migration Act. The fact is that I see no breach of any section of the Migration Act. I am unable to discern any jurisdictional error or any suggestion of a jurisdictional error. I am satisfied that there is none.

  12. As there is no jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Under the provisions of sub-s.474(1) of that Act, as the decision is a private clause decision, it is not therefore subject to any of the orders in the nature of certiorari or mandamus that the Applicant seeks. It follows that the application must be dismissed.

  13. I note, in passing, that when the proceedings were commenced the correct title of the Minister was Minister for Immigration & Multicultural Affairs. Since then, however, the Minister's title has changed to Minister for Immigration & Citizenship. Whilst, in my view, nothing turns on the point, it is appropriate that I should make an order changing the title of the First Respondent Minister to Minister for Immigration & Citizenship and I will do so. 

  14. That leaves the question of costs to be decided. I am satisfied that this is an appropriate matter for an order for costs and I am satisfied that the sum of $3,000.00 which is sought is an appropriate figure within the scale envisaged by the Federal Magistrates Court Rules.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  30 March 2007

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