SZJVQ v Minister for Immigration and Anor
[2007] FMCA 1037
•27 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1037 |
| 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 because his parents had been arrested as Falun Gong supporters – credibility – no obligation on the Refugee Review Tribunal to conduct its own inquiries – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B, 424A, 474 |
| Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 487 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 SZIRO v Minister for Immigration & Citizenship [2007] FCA 260 SZBVM v Minister for Immigration & Citizenship [2007] FCA 332 |
| Applicant: | SZJVQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3690 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 June 2007 |
| Date of last submission: | 27 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Cleary |
| 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 $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3690 of 2006
| SZJVQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before the Court is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed the decision on 30th October 2006, after a hearing on 24th October in that year. The Tribunal handed down its decision on 23rd November 2006, affirming the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant filed an application for judicial review of that decision on 11th December 2006. In that application he seeks a declaration that the Tribunal's decision was made in excess of jurisdiction and is therefore null and void. He also seeks an order in the nature of certiorari, quashing the decision. Whilst the application seeks that order to be directed to the First Respondent, who is the Minister, it should of course be directed to the Second Respondent, the Tribunal.
The Applicant claims, in his application, that there are three grounds. He sets those out as follows:
(1) I am a citizen of China. If I go back to China, I will be at risk of suffering persecution within the meaning of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.
(2) Member of the RRT failed to understand my claims and failed to consider relevant matters. Further particulars to be provided.
(3) The respondent refused to grant my protection visa without any proper grounds and proper investigation.
Background
In order to consider the application it is necessary to examine the background to this matter. There is no issue that the Applicant is a citizen of the People's Republic of China. He arrived in Australia on 14th November 2004 and applied for a Protection (Class XA) visa on 9th May 2006. That application was refused on 22nd July in that year.
The Applicant then applied to the Refugee Review Tribunal, on 25th August 2006, for a review of the delegate's decision. He accompanied his application form with a handwritten statement in English. In that he set out that he had a fear of persecution by the Chinese Secret Police from “the 610 office” if he were to go back to China, because his parents' friend in China told him that his parents had been secretly arrested by local police four months previously because they had helped local Falun Gong members. He said that the friend told him that the local police would arrest him as well if he went back and he would be separated from his parents forever.
He went on to say that until the time of the application he could not contact his parents and had no information about them. He said he had lost his financial support from them and had to be supported by his girlfriend and some other school friends in Australia. Although he has a bridging visa, he does not have permission to work. He does not know how he can support himself.
He has said that he had been sent to the Immigration Detention Centre at Villawood because the Department of Immigration thought that he had breached his student visa by working, but he claimed that he was actually going to visit a friend at the friend's workplace. He claims still to have nightmares about the Detention Centre, he could not sleep well at night, and could not imagine the situation in which a camp in China, because he had heard lots of stories about that and he is worried about his parents. He has stated that he only knew that his parents had been arrested before he decided to go back to China, after he was released from the Detention Centre.
He does not want to breach the conditions of his visa in Australia.
He has said that he could not get more documents to support his reasons but he hoped that the Tribunal would really think about his special condition. He said his parents' friends in China could not give him any help and any documents to support his case because the friends did not know where his parents are located. He said that he did not go back to China because he feared some bad thing would happen to him. He had read and heard a lot of stories about how the Chinese government punish Falun Gong members and people who protect them. He said that he feared and was unwilling to return to his own country because of his parents' membership of a particular social group in China. He said he had become homeless and he needed the Australian government to protect him.
The Tribunal wrote to the Applicant on 6th September 2006, inviting him to attend a hearing on 24th October. The Applicant replied to that invitation, indicating that he wished to attend the hearing and needed an interpreter in the Mandarin language. He also stated that he wished to bring another person to the hearing with him. He indicated, in his response, that he wanted the Tribunal to hear oral evidence from the friend who was going to accompany him.
The Applicant attended the hearing on 24th October. He was accompanied by his friend, who was to be his witness. He produced his Chinese passport to the Tribunal and the Tribunal took a photocopy of the relevant pages of the passport.
A copy of the Tribunal decision can be found at pages 66 through to 75 of the Court Book. In that decision, the Tribunal sets out a summary of the Applicant's claims and the evidence heard at the Tribunal. That can be found at pages 69 through to 73 of the Court Book. The Tribunal noted that it heard evidence from the Applicant and also heard evidence from the Applicant's witness.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 73 through to 75 of the Court Book. The Tribunal, in its findings and reasons, noted the Applicant's claim that he fears to return to his country because of a fear of persecution by Chinese authorities, because his parents have been arrested and held in China for supporting Falun Gong members. He claimed that he had learned about his parents' situation whilst he was in Australia. The Tribunal noted that implicit in his claims is the claim that he cannot get protection in China from the harm that he fears.
The Tribunal did accept at page 74 of the Court Book - that there is sometimes persecution not only of Falun Gong practitioners by the Chinese authorities but also of those who support Falun Gong practitioners. The Tribunal, whilst accepting that, went on to consider whether the Applicant had a genuine fear, founded upon a real chance of persecution, if he were to return to his home country, namely China.
However, the Tribunal did not accept as true that the Applicant had lost contact with his parents or other family members in China. Nor did it accept that his parents had been arrested for supporting Falun Gong members in China, as he claimed. The Tribunal did not accept that the Applicant's uncle had informed him about these matters or that the Applicant feared to return to China for those reasons. Again, the Tribunal did not accept that Chinese authorities were asking about the Applicant's situation in China, or that any of his family members - including his parents - are persecuted in China.
The Tribunal went on to say this:
The reason that the Tribunal finds against the applicant in relation to these matters is that it does not accept he is a witness of truth. It finds that he has invented these claims to assist his application for a protection visa so that he can remain in Australia.[1]
[1] See Court Book at p.74.
The Tribunal then went on to set out why, in the Tribunal's view, it did not accept he was a witness of truth. The Tribunal took the view that if the Applicant had lost contact with his parents, which would have been a very significant event for him, he would have been able to tell the Tribunal when this had occurred. The Tribunal noted that the Applicant gave various answers to the Tribunal about the timing of this and set out what they were.
The Tribunal took the view that the Applicant gave untruthful evidence about why he had dropped out of the English course that he had been previously studying in April 2005. The Tribunal did not accept the Applicant's evidence that he wanted to study in Australia after he was released from detention and that the reason he did not do so was because his student visa was cancelled when he was detained. The Tribunal did not consider that it was plausible that a friend of his father would support him financially by giving him accommodation and $400.00 per month, which, in effect, continued the financial arrangement that the Applicant's father had put in place after the Applicant was released from detention.
The Tribunal went on to find that the Applicant only made an application for protection when his avenues of remaining in Australia as a student were exhausted. It did not accept as true that he applied for protection at that time because his uncle had told him that his parents had been arrested in China and he would be arrested if he were to return. The Tribunal found there was no plausible evidence that the Applicant's parents were arrested for supporting Falun Gong practitioners in China.
The Tribunal went on to say this:
As the Tribunal finds that the applicant is not a credible witness it gives no weight to the evidence of his friend who was a witness before the Tribunal. At best, the witness repeated, for the most part, information given to him by the applicant.
The Tribunal found there was no plausible evidence that the Applicant would suffer persecution for a Convention reason, from Chinese police, or the authorities, or anyone else in China, at that stage or in the reasonably foreseeable future if he were to return.
The Tribunal was not satisfied that the Applicant had a well-found fear of persecution in China, within the meaning of the Convention. As a result, the Tribunal affirmed the delegate's decision not to grant the Applicant a protection visa.
The application for judicial review
The Applicant has not filed any written submissions and initially did not wish to speak in support of his application. Later, however, he did say that all he wanted to say was that it was very hard for him to contact his family back in China. He claimed that the Tribunal did not have the evidence to reject his claims.
Turning to the grounds in the Applicant's application, the first ground, which alleges that the Applicant is a citizen of China and would be at risk of suffering persecution within the meaning of the Convention if he were to return, is not a ground for review. It is a statement in the Applicant's claim for a protection visa.
The second ground is that the Tribunal Member failed to understand the Applicant's claims and failed to consider relevant matters.
The Applicant has not provided any particulars of those claims. Counsel for the Respondent minister, Mr Cleary, submitted that, in the absence of any further elaboration of that ground, it was meaningless and should be rejected. He stated that the Tribunal had quite clearly and cogently considered the claims of the Applicant from page 69 of the Court Book onwards. He pointed out that the Tribunal rejected the Applicant's application because the Tribunal found the Applicant was not a credible witness.
In my view, having read the Applicant's claims as set out in his application for review, there is evidence upon which I can be satisfied that the Tribunal did consider the Applicant's claims to the Tribunal, as witness the comprehensive summary of the Applicant's claims of evidence. The Applicant had set out his claims in his statement annexed to his application for review and I am satisfied that the Tribunal not only understood his claim but gave it proper consideration. There is no evidence of any relevant matter that the Tribunal failed to consider. Accordingly, the second ground for review must fail.
The third ground alleges that the Tribunal refused to grant the application for a protection visa without any proper grounds and proper investigation. The Tribunal decision made it clear that the Tribunal found the Applicant was not a witness of truth and rejected the Applicant's claims, on the basis of a lack of credibility.
Findings as to credit are a matter for the administrative decision‑maker, because they are, by definition, factual matters and, provided there is evidence upon which the administrative decision-maker - in this case the Tribunal - can be satisfied, then there is no avenue for a court conducting judicial review to interfere (see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 487).
The fact is that the Tribunal decision turned exclusively on credibility. The Tribunal was just not satisfied that the Applicant's claims were credible or that the Applicant was a credible witness. There is no reason to disturb that finding. The third ground for review, therefore, must fail.
I am mindful of the fact that the Applicant is not legally represented in these proceedings. I have read through the Tribunal decision and the supporting documents, independently of the Applicant's application and oral submission and independently of the submissions on behalf of the First Respondent Minister. I am unable to ascertain any arguable ground relating to jurisdictional error. The Tribunal invited the Applicant to attend the hearing and did so within an appropriate period of time. The Applicant attended the hearing and the Tribunal provided him with the services of an interpreter. The Tribunal heard the evidence of a witness whose identity the Applicant had made available.
I am satisfied that the Tribunal, in providing the Applicant with a hearing and providing the Applicant with the opportunity to call evidence on his behalf and, in doing so, within the time required by the Act, has complied with s.425 of the Migration Act.
The fact that the Tribunal did not accept either the Applicant's evidence as credible or the evidence of the Applicant's witness is not an indication of any error on the part of the Tribunal. The onus remains, not that there is an onus of proof in strict legal terms, on the Applicant to satisfy the Tribunal that he meets the criteria for a relevant visa. In this case, it was up to the Applicant to provide the evidence and the arguments necessary to satisfy the Tribunal that his case met the criterion on sub-s.36(2) of the Migration Act for the grant of a protection visa. The Tribunal found that the Applicant's evidence and the evidence of the Applicant's witness fell short of that requirement.
It is not incumbent upon the Tribunal to provide specific grounds for refusing a visa, although the grounds upon which the Applicant's application for review was refused were strictly those of credibility, which were grounds open to the Tribunal.
The Applicant claimed that the Tribunal refused to grant his visa without any proper investigation. True it is that the Tribunal has the power under ss.424 and 427 of the Migration Act to seek further information or make its own inquiries. It is well-established, however, that the Tribunal's power under s.424 is discretionary and that the Tribunal does not have a duty to investigate the Applicant's claims (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 42-43, quoted in SZIRO v Minister for Immigration & Citizenship [2007] FCA 260 at [12]). It is also well‑established that there is no general obligation on the Tribunal to make further inquiries in the exercise of its power under s.427 of the Migration Act. There are no circumstances shown that would generate any obligation on the Tribunal to make any further investigations (see SZBVM v Minister for Immigration & Citizenship [2007] FCA 332 at [16]).
Accordingly, I am satisfied that there was no obligation on the Tribunal to make any investigation of the Applicant's claims, and the fact remains that the Tribunal was not satisfied as to credibility of the Applicant's case. There is no jurisdictional error that I can ascertain.
In the absence of jurisdictional error, the decision is a privative clause decision, as defined by sub-s.474(2) of the Migration Act. Accordingly, the decision is not subject to declaration or orders in the nature of certiorari, mandamus or prohibition. It follows that the application must be dismissed.
I note that a registrar of this Court has previously ordered that the name of the First Respondent be changed to Minister for Immigration & Citizenship and it also amended the description of the Second Respondent.
I propose to dismiss the application.
The Applicant has been highly unsuccessful in his claim and, in my view, it is appropriate to make an order for costs in favour of the Respondent Minister. The amount sought, inclusive of counsel's fees, is $4,500.00, which is within the appropriate scale under the Federal Magistrates Court Rules.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 5 July 2007
0
5
2