SZJUK v Minister for Immigration

[2007] FMCA 439

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJUK v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 439

MIGRATION – Visa – Refugee Review Tribunal – Protection (Class XA) visa -application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of the People's Republic of China – claim of well-founded fear of persecution because of adherence to Falun Gong – no reviewable error.

PRACTICE & PROCEDURE – Change of title of the Minister.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 475A

SZHCJ v Minister for Immigration and Multicultural Affairs [2007] FCA 205

Applicant: SZJUK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3564 of 2006

Judgment of: Scarlett FM

Hearing date: 21 March 2007

Date of last submission: 21 March 2007

Delivered at: Sydney

Delivered on: 21 March 2007

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr Godwin

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $ 4,500.00.

3. I allow five (5) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3564 of 2006

SZJUK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was signed on 25 October and handed down on 14 November 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.  The Applicant seeks orders from the Court quashing the decision of the Tribunal and remitting his application for a visa to the Tribunal for determination according to law.

Background

1. The background to this matter is that the Applicant is a citizen of the People's Republic of China.  He arrived in Australia on 20 October 2004 and applied for a Protection (Class XA) visa on 3 December in that year. On 7 March 2005 a delegate of the Minister refused the application for a visa. The Applicant sought a review of that decision from the Refugee Review Tribunal.

2. The Applicant attended a hearing of the Tribunal, which affirmed the delegate's decision on 4 August 2005. The Applicant then sought judicial review of the Tribunal decision by means of an application to the Federal Magistrates Court.

3. On 5 June 2006 Barnes FM made orders by consent quashing the decision of the Tribunal and remitting the application to the Tribunal for reconsideration and determination according to law. The Applicant was then invited to attend a hearing, and attended that hearing on

   
   

   6 September 2006.  The Applicant gave evidence with the assistance of an interpreter.

4. In the Tribunal's decision, a copy of which can be found on pages 136 through to 157 of the Court Book, the Tribunal had this to say about the Applicant's evidence:

   Much of the applicant's evidence was unfocussed and disjointed.  In the Tribunal's opinion, this reflected the applicant's slight agitation and was not the result of any language or interpretation issues.[1]

   [1] See Court Book, p.143

5. The Tribunal asked the Applicant a number of questions about his claimed fear of persecution on behalf of his participation in Falun Gong activities in China and in Australia.

6. After the hearing on 7 September 2006, the Tribunal wrote to the Applicant putting to him details of potentially adverse information and seeking his comments. The Tribunal noted that that letter was written in order to comply with the requirements of s.424A of the Migration Act. The Applicant replied to that letter on 3 October 2006, and parts of the Applicant's reply are reproduced in the Tribunal decision at pages 149 and 150 of the Court Book.

The Tribunal’s findings and reasons

1. The Tribunal's findings and reasons are set out on pages 150 to 157 of the Court Book.  The Tribunal accepted on the basis of the Applicant's travel document from China and the Applicant's oral evidence that the Applicant had the nationality of the People's Republic of China and assessed his claims against that country. The Tribunal accepts some doubts about the veracity of the Applicant's evidence and, indeed, concluded that the Applicant was not a Falun Gong practitioner. The Tribunal did not accept that the Applicant was formerly a pro‑democracy activist.  The Tribunal had this to say at page 156 of the Court Book:

   It is not satisfied that he has suffered past harm, let alone persecution, from the authorities, employers, neighbourhood committees or anyone else, for reasons of any Falun Gong, political or other activities.

2. The Tribunal accepted that the Applicant had become involved in Falun Gong activities in Australia, but did not consider that this was based on any genuine interest but, rather, it was for the interests of strengthening his refugee claims. The tribunal disregarded the Applicant's involvement in Falun Gong activities in Australia in assessing whether the Applicant faced a real chance of prospective persecution. The Tribunal found that the Applicant had no genuine commitment to Falun Gong or the pro‑democracy movement and did not accept that he would be motivated to engage in any related conduct if he were to return to China. The Tribunal also found that there were no other factors that suggested that the Applicant faced a real chance of persecution for any other reason.

3. The Tribunal was not satisfied that the Applicant had a well‑founded fear of persecution for one or more of the Convention reasons and affirmed the decision of the delegate not to grant the Applicant a Protection (Class XA) visa.

Application for judicial review

1. The Applicant commenced proceedings for judicial review by filing an application and an affidavit in this Court on 1 December 2006.  It is pleasing to note that the Applicant's affidavit bears a certificate of an interpreter certifying that the interpreter knows the Applicant, speaks Mandarin fluently and English reasonably well and read the affidavit to the Applicant in Mandarin before he signed it and noted that the Applicant indicated his understanding of the affidavit. I mention this point because all too often the Federal Magistrates Court sees affidavits by non‑English speakers which completely ignore the Court rules.  It is pleasing to see that the person who prepared this affidavit has made a serious effort to comply with the Court rules, and this behaviour should be encouraged.

2. At the commencement of the hearing I informed the Applicant about the functions of a Court conducting judicial review.  I expressed some concern to the Applicant that the two grounds for the application did not set out any jurisdictional error. Rather, they appeared to be challenges to the factual findings of the Tribunal, even though each ground claimed that the Tribunal fell into jurisdictional error in making a particular finding.

3. It is worthwhile to consider the judgment of Giles J in SZHCJ v  Minister for Immigration and Multicultural Affairs [2007] FCA 205 at [3], where his Honour said:

   In so far 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.

4. In oral submissions the Applicant first of all referred to an incident that he said had occurred when he went to the first Tribunal hearing.  That is not a matter upon which anything will turn in the proceedings before me as the decision made by the Tribunal after the first Tribunal hearing has been quashed.  The Applicant told the Court that when he attended the second Tribunal hearing the Tribunal Member said that he did not understand why the case had been set back to the Tribunal. 

5. As Mr Godwin for the Respondent pointed out, no evidence has been produced that supports that contention.  If there had been evidence that that statement was, in fact, made, I would have expressed some concern that commenting on the return of applications that had been remitted by the Court is an undesirable practice for Tribunal Members.  As I said, however, there is no evidence that that statement was actually made. The Applicant said that the Court could obtain the original RRT tape of the proceeding, but it is not the function of the Court on judicial review to obtain its own evidence.  A party wishing to adduce evidence before the Court has the onus of producing that evidence rather than suggesting that the Court should go and conduct its own investigation.

6. The Applicant also raised some concerns about the manner in which the interpreter at the Tribunal hearing translated his words into English.  He said that most of the time the interpreter's voice was very low but that interpreter often raised her voice for the last one or two words of the sentence. He feared that the Tribunal Member may have gained an unfavourable impression that the Applicant's evidence was marked by rudeness or discourtesy or impoliteness.

7. As was submitted by Mr Godwin of counsel, and I believe correctly, there is no evidence that the Tribunal expressed any concern at the manner in which the Applicant's evidence was given.  There is nothing to suggest from reading the tribunal decision that the Tribunal Member was at all concerned that evidence might have been given in an impolite way.  Mr Godwin also pointed out that no complaint had been made about the substance of the interpreting.

8. In also note that the Tribunal wrote to the Applicant the day after the hearing inviting his comments on certain information under the provisions of s.424A of the Migration Act. The Applicant took advantage of the opportunity given to him to make written comments and submitted written comments in reply on 3 October 2006. The Tribunal quotes from these comments in the decision, and I am satisfied that the Tribunal gave consideration to the matters that the Applicant put in that submission.

9. In my view, the Applicant has not made out any jurisdictional error.  Neither of the matters raised in the oral evidence established jurisdictional error, and the two grounds in the application, although they allege that the Tribunal fell into jurisdictional error, are, in fact, complaints about the factual findings made by the Tribunal.  As I think I have already made clear, it is not the function of the Court to reconsider factual conclusions when they are essentially a matter for the administrative decision maker.

10. So long as there is evidence upon which those factual findings can be made, there is no scope for the Court conducting judicial review to interfere with those factual findings. I am satisfied that the factual findings made by the Tribunal were open to it on the evidence before the Tribunal.

11. The Applicant is not legally represented, although he did apply to take part in the Refugee Review Tribunal Legal Advice Panel scheme.  Because he has not been represented at the hearing, I have conducted my own independent review of the Tribunal decision and the supporting materials. I am unable to discern any arguable case for any jurisdictional error on the part of the Tribunal. As no jurisdictional error has been made out, the Tribunal decision is a privative clause decision as defined in sub‑s.474(2) of the Migration Act 1958.  Under sub‑s.474(1) of the act a privative clause decision is not subject to orders in the nature of certiorari or mandamus, for that matter.  It follows that the application must be dismissed.

12. I note that I have already made an order changing the title of the First Respondent to Minister for Immigration and Citizenship, although that order seems to have been ignored in the description of the Minister in the First Respondent's submissions.  I would have formed the view that the solicitors acting for the First Respondent would have noted the change in their client's name by now but, nevertheless, anyone can make an oversight.

13. This is clearly a matter where I should consider an application for costs. There is an application for costs on behalf of the Respondent Minister.  The Applicant has been unsuccessful in his claim and, in my view, an order for costs is appropriate.  The amount sought is $4,500.00, which is within the Court's scale. 

14. The Applicant told the Court during the discussion on costs that he had not received any advice back from the lawyer on the panel to whom he had been referred.  It is unfortunate that that particular matter was not raised until after the Court had handed down its decision.  As I indicated to the Applicant, it is too late for the Court to do anything about that at this stage. 

15. The Applicant did indicate that as he has no work permit he is unable to work and does not have the funds to meet an order for costs.  That is not a reason not to make a costs order, but it is a matter to take into account when considering whether the Court should allow time to pay. I propose to allow five months to pay.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  29 March 2007