SZJWL v Minister for Immigration
[2007] FMCA 609
•23 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJWL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 609 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A |
| Minister for Immigration v Al Shamry (2001) 110 FCR 27 SAAP v Minister for Immigration (2005) 215 ALR 162 |
| Applicant: | SZJWL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3743 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 23 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3743 of 2006
| SZJWL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was apparently handed down on 16 November 2006. The applicant sought judicial review of that decision by way of a show cause application filed on 14 December 2006. In that application he asserted notification of the Tribunal decision on 27 November 2006. On that basis I find that the application was filed within time.
The background to the applicant’s protection visa claims and the Tribunal decision on them are set out in the Minister’s outline of legal submissions filed on 5 April 2007. I adopt as background for the purposes of this judgment paragraphs 2 through to 5 of those written submissions:
The applicant, a citizen of the People’s Republic of China (PRC), claimed to fear persecution from the PRC authorities. He claimed he assisted Falun Gong practitioners by loaning them his taxi to distribute pamphlets. The applicant claimed he was questioned by police, detained for hiding a senior Falun Gong practitioner in his home and physically and mentally tortured by the authorities: court book “CB” 19.
The applicant attended a hearing before the Tribunal on 9 October 2006 (CB 48-49) and gave oral evidence: CB 60-63.8. The applicant claimed to have practised Falun Gong, but not “formally”: CB 63.3.
The Tribunal found the applicant’s evidence at the Tribunal hearing to be “inconsistent, vague, general and confused”: CB 64.9. The Tribunal noted that the applicant had given inconsistent evidence about whether he practised Falun Gong, when he was first arrested and how many times he had been arrested: CB 65.1, 65.2-65.4, 65.6. The Tribunal found as “implausible”: the applicant’s claim that he had been caught distributing Falun Gong materials in 2002 but released after one day CB 65.5. The Tribunal also regarded as “unconvincing” the applicant’s evidence about who he drove around to distribute pamphlets: CB 65.8.
On the basis of the identified inconsistencies and implausibilities the Tribunal found that the applicant had fabricated a number of his claims in order to support his application: CB 66.1. In light of its adverse findings as to the applicant’s credibility, the Tribunal found that the applicant’s knowledge of Falun Gong was acquired for the purposes of enhancing his application for a protection visa and accordingly disregarded this knowledge pursuant to s.91R of the Migration Act 1958 (Cth) (“the Migration Act”): CB 66.5.
The applicant now relies upon an amended application filed on 20 March 2007. That application sets out three grounds of review: firstly, that the Tribunal failed to consider his application by referring to proper independent information; secondly, that the Tribunal was biased against him and failed to consider his claims in accordance with s.91R of the Migration Act; and, thirdly, that the Tribunal failed to carry out its statutory duty and failed to notify him of the reason or part of the reason for affirming the delegate’s decision. Although the third ground appears to assert a failure to give reasons it is apparent from the particulars annexed to the application, which are in template form, that the assertion relates to an alleged breach of s.424A of the Migration Act.
The applicant also continues to rely on his affidavit filed with his original application which I accepted as a submission. In that affidavit the applicant also asserts breach of statutory duty and bias.
The only evidence I have before me is the court book filed on 19 January 2007. The applicant has not filed any written submissions apart from his short original affidavit. I invited him to make oral submissions in support of his amended application. He told me that he was truthful in his protection visa claims and is concerned that he was not believed. He mentioned that he bears a scar from his alleged maltreatment by the Chinese authorities. He confirmed that he had shown the scar to the Tribunal. At CB 60 and 61 the Tribunal noted the scar on the applicant’s back but did not accept that the scar on his back was the result of an assault by the Chinese authorities.
The applicant told me that he seeks temporary protection until such time as his concerns about the authorities’ interest in him in China abate. I invited him to consider putting that request to the Minister through his Department. It is obvious that the applicant is concerned about the merits of the Tribunal decision but he was not able to give me any particulars of his assertions of jurisdictional error.
There is in my view no substance to the asserted grounds of jurisdictional error. There was no obligation on the Tribunal to have regard to independent information. I note, in any event, that the Tribunal did have regard to independent country information (CB 60 and 61). There is nothing to support the allegation of bias. The applicant was not believed but the conclusions reached by the Tribunal on the material before it were open to it. It is plain on the face of the Tribunal decision that the Tribunal considered the operation of s.91R of the Migration Act. In particular, the Tribunal disregarded the applicant’s conduct in Australia pursuant to s.91R(3) of the Migration Act. It is implicit in that finding (CB 66) that the Tribunal considered the applicant had gained his knowledge about Falun Gong in Australia for the purpose of enhancing his protection visa application. In those circumstances, the Tribunal acted correctly in disregarding the applicant’s conduct in acquiring that knowledge to support his claims.
The applicant was not able to point out any information adverse to his claims that was withheld from him. On the basis of the material in the court book no breach of s.424A or, indeed, any jurisdictional error is apparent to me.
Further, I agree with and adopt for the purposes of this judgment paragraphs 6 through to 10 of the Minister’s written submissions:
On 20 March 2007, the applicant filed an amended application pleading three grounds of review. The first ground alleges that the Tribunal failed to consider the applicant’s application by referring to proper independent information. No particulars are provided to identify which information the Tribunal is said to have failed to refer to. In any event, the choice and assessment of country information is a factual matter for the Tribunal.[1] The applicant did not provide any country information to the Tribunal for its consideration.
The second ground alleges that the Tribunal was biased and failed to consider the applicant’s claims according to s.91R of the Act. Again, no particulars are provided. The applicant has made no attempt to comply with the requirement that the serious allegation of bias be firmly and distinctly made and clearly proven.[2] Moreover, there is no support for a contention that the Tribunal misunderstood the applicant’s case. The Tribunal correctly summarised the claims made by the applicant in his protection visa application and to the Tribunal. It is not apparent that the Tribunal misunderstood the case before it. The Tribunal clearly considered the applicant’s claims but rejected them on the basis of its factual findings about his credibility. Findings of fact, including findings in relation to credit, are a matter solely for the Tribunal.[3]
The third ground alleges that the Tribunal failed to carry out its statutory duty by not notifying the applicant of the reason or part of the reason for affirming the decision. The amended application attaches two pages of purported particulars containing paragraphs numbered (a) to (e). The particulars are formulaic and in terms that are familiar to the Court. Paragraphs (a) to (d) contain general statements of principle relating to the statutory requirements of s.424A and references to the High Court’s decision in SAAP and the decision of the Full Court of the Federal Court in Al Shamry. There is no attempt to provide any meaningful connection to the facts and circumstances of the present case.
Particular (e) states in very general terms that the Tribunal relied on information, or the lack of information, contained in the applicant’s protection visa application and that it was required to put that information to the applicant for comment pursuant to s.424A of the Act. However, the Tribunal did not rely on any information in the applicant’s protection visa application in affirming the decision under review.
The Tribunal cited a number of reasons for its conclusion that the applicant was not a credible witness: CB 65. Yet each of these reasons related to the Tribunal’s assessment of the applicant’s inconsistent and implausible evidence given at the Tribunal hearing. Accordingly, the relevant ‘information’ falls within the scope of s.424A(3)(b) of the Act and no obligation arises under s.424A.
[1] NAHI v Minister for Immigration [2004] FCAFC 10 at [11-13].
[2] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J
[3] NADR v Minister for Immigration (2003) FCAFC 167 at [9]
I find that the applicant has failed to establish an arguable case of jurisdictional error. I therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The application having been dismissed costs should follow the event. The Minister seeks scale costs of $2,500. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item (1)(b) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 April 2007
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