SZJVZ v Minister for Immigration
[2007] FMCA 1854
•1 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVZ v MINISTER FOR IMMIGRATION & ANOR | [2007]FMCA 1854 |
| MIGRATION – Review of Decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| Applicant: | SZJVZ |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
| File number: | SYG 3718 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 November 2007 |
| Date of last submission: | 1 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2007 |
REPRESENTATION
| Applicant appearing on her own behalf |
| Counsel for the Respondent: | Ms T. Wong |
| Solicitors for the Respondent: | Ms N. Johnson, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3718 of 2006
| SZJVZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant claims to be entitled to a protection visa on the basis that she has a well-founded fear of persecution from authorities in China as a result of being a Falun Gong practitioner.
The applicant arrived in Australia on 10 April 2006 on a visitor's visa and lodged an application for protection with the then Department of Immigration and Multicultural and Indigenous Affairs on 26 April 2006.
On 14 July 2006, a delegate of the then Minister refused the applicant a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 8 August 2006, the applicant lodged an application with the Refugee Review Tribunal (“the Tribunal”) which was not supported by any further evidence.
On 22 October 2006, the Tribunal invited the applicant to attend a hearing, which the applicant did on 15 September 2006. At that hearing the applicant made claims for the first time that were not consistent with claims made by her before the delegate.
On 20 September 2006, the Tribunal wrote to the applicant identifying information that, in its view, may be the reason or part of the reason for affirming the decision under review. The letter explained to the applicant that the information may lead the Tribunal to conclude that the applicant was not a credible witness and that the applicant had sought to mislead the Tribunal in regard to her claims to fear harm by the Chinese authorities, and thereby lead the Tribunal to conclude that the applicant did not have a subjective fear of being persecuted for a Convention reason.
The Tribunal’s letter invited the applicant to comment by 13 October 2006, and informed the applicant that, if she did not provide any comments by 13 October 2006, the Tribunal may make a decision on the review without further notice. No response was received to that letter by the Tribunal from the applicant.
The applicant's claims and the Tribunal's decision are accurately set out in the written submissions of counsel for the first respondent,
Ms Wong, as follows:“9. The Applicant claims to have a well-founded fear of persecution arising from her status as a Falun Gong practitioner: CB 19. The Applicant made the following specific claims in her original application for a protection visa (CB 19-22):
(a)the Applicant suffered mental and physical torture from local police officers for her practice of Falun Gong;
(b)one night, several policemen broke into the Applicant’s house and arrested her. The policemen then tore off her clothes and dragged her across the cement floor because she refused to go with them to the police station;
(c)the Applicant was placed in a detention centre where she was tortured and beaten. The Applicant was released in November 2001; and
(d)the Applicant will continue to suffer the same treatment by the authorities if she returns, who have been directed to act in this way by government order and who thus cannot protect her.
10. The RRT commenced its reasons for decision by stating the background to the proceedings: CB 74. The RRT then summarised the legal principles applicable to determining the Applicant’s claims and referred to the claims and evidence presented by the Applicant: CB 74-83.
11. The RRT determined that the oral evidence given by the Applicant at hearing was different in its entirety to her application form: CB 84. The RRT further held that the Applicant was unable to give a satisfactory explanation for the discrepancy, which led the RRT to conclude that the Applicant was not a credible witness: CB 84-85.
12. The RRT was therefore not satisfied that the harm the Applicant claimed to have suffered had befallen her in the past. The RRT further held that the Applicant had sought to mislead the RRT in regard to her claims as to when and how she started Falun Gong: CB 85.
13. The RRT concluded that the Applicant was not a Falun Gong practitioner and rejected the Applicant’s claims that she had been detained for this reason: CB 85. The RRT held that the Applicant did not have a well-founded fear of Convention-related persecution and affirmed the decision of the Minister’s delegate no to grant the Applicant a protection visa: CB 85.”
The applicant appeared before this Court this morning unrepresented, although had the assistance of an interpreter.
The applicant confirmed that she relied upon the grounds identified in the amended application filed by her on 22 March 2007. The Court asked the applicant if she would be assisted by having the grounds interpreted for her. However, she declined that offer. The grounds of the amended application are set out as follows:
“1. The Tribunal failed to consider my claims for my application for a protection visa in accordance with S91R of the Migration Act 1958.
2. The Tribunal failed to provide me an adequate opportunity to respond the substance of the information.
3. The Tribunal failed to carry out its statutory duty. The Tribunal failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958. please refer to the following pages for details)
The Grounds of the Applicant are:
1. 1. The Tribunal failed to carry out its statutory duty
Particulars
(a) The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
(b) The Tribunal was required to provide particulars of the information that was the reason for affirming the decision. Migration Act 1958s. 424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
(c) The above particulars had to be provided in writing SAAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDUSTRIAL AND ETHNIC AFFAIRS (2005) HCA 24 (18 May 2001)”
In relation to Ground 2, the Court asked the applicant what was the information that she was asserting the Tribunal had failed to provide her an adequate opportunity to respond to. The applicant stated that she did not know. The applicant declined to say anything further in support of her amended application.
None of the grounds are particularised and none disclose any particular error capable of review by this Court. The grounds are no more than bare assertions of error, unaccompanied by particulars or evidence. The applicant was unable in oral submissions to elaborate any further on any of the grounds.
In its decision the Tribunal identified the written claims made by the applicant in support of her application for a protection visa lodged with the Department. The Tribunal also identified exchanges it had with the applicant during the hearing in which it identified concerns about the claims she now made to the Tribunal. The Tribunal referred to independent evidence to which it had regard.
Ultimately, the Tribunal's rejection of the applicant's claims were based on the adverse findings made by the Tribunal of the applicant's credibility. Those adverse findings arose from the inconsistency between the claims made by the applicant to the delegate and the oral claims made before the Tribunal and the applicant's failure to provide satisfactory explanation to the Tribunal for those inconsistencies. Those matters were put by the Tribunal to the applicant in a letter dated 20 September 2006 in accordance with s.424A of the Migration Act 1958 (Cth) (“the Act”).
As referred to above in these Reasons, the applicant failed to respond to the request to comment on the concerns identified by the Tribunal in the s.424A letter. This failure to respond led the Tribunal to find that the applicant was not a credible witness and that she had sought to mislead the Tribunal in regard to her claims as to when and how she started Falun Gong. The Tribunal also was not satisfied that the applicant had a sufficient knowledge of the Falun Gong exercises. The Tribunal concluded that the applicant was not a Falun Gong practitioner. Accordingly, the Tribunal rejected the applicant's claim that she was detained for that reason.
The Tribunal was not satisfied that the applicant had suffered harm in the past for a Convention reason and therefore concluded that the chance that such harm would befall her in the reasonably foreseeable future was remote. The Tribunal, having considered the evidence as a whole, was not satisfied that the applicant is a person to whom Australia has protection obligations and affirmed the decision under review.
The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. The Tribunal otherwise complied with the statutory regime in the making of its decision, including the conduct of its review.
Counsel for the first respondent in her written submissions also referred to an error of fact in the Tribunal's decision. I refer to paras.21, 22 and 23 of counsel for the first respondent's written submissions, set out as follows:
“21. The second and fourth paragraphs of the RRT’s decision contain references to what appears to be another application for review, as the dates and country specified do not relate to the Applicant’s procedural history.
22. There is no error of law simply in making a wring finding of fact: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. An error of fact will not give rise to jurisdictional error unless the error is with respect to a jurisdictional fact, namely, a fact which was essential to the reasoning by which the Tribunal reached its decision: VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 at [10]-[11].
23. In the present case, the facts referred to in the second and fourth paragraphs pf the RRT’s decision did not play any part in its findings regarding the Applicant’s entitlement to a protection visa. These facts therefore did not constitute jurisdictional facts and any misstatements by the RRT regarding the Applicant’s entitlement to a protection visa. These facts therefore did not constitute jurisdictional facts and any misstatements by the RRT regarding these facts did not give rise to jurisdictional error.”
The Court agrees with the submissions made by counsel for the first respondent in relation to the errors of fact made by the Tribunal. Such errors do not constitute jurisdictional errors in the circumstances by the Tribunal.
A fair reading of the Tribunal's decision does not suggest that the Tribunal's decision is affected by any error going to its jurisdiction. In those circumstances, the Tribunal's decision is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere. The grounds of the amended application are not made out.
Accordingly, the proceeding before this Court commenced by way of application on 13 December 2006, is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 5 November 2007
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