SZJXC v Minister for Immigration

Case •

[2007] FMCA 545

•

4 April 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJXC & MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 545
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.424A, 474
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592
Applicant: SZJXC
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3819 of 2006
Judgment of: Scarlett FM
Hearing date: 4 April 2007
Date of last submission: 4 April 2007
Delivered at: Sydney
Delivered on: 4 April 2007

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Mr Cramer
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. The Application is dismissed.

  2. 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 3819 of 2006

SZJXC

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 Tribunal signed the decision on 25th October 2006, and handed it down on 21st November.  The Tribunal affirmed the decision of a Delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. 

  2. The Applicant asks the Court for a writ of certiorari to quash the Tribunal decision, and a writ of mandamus returning the Applicant's application to the Tribunal for consideration according to law. 

Background

  1. The background to this matter is that the Applicant is a citizen of China.  He arrived in Australia on 9th May 2006.  On 5th June 2006 he applied for a Protection (Class XA) visa.  A Delegate of the Minister refused his application for a visa on 18th July 2006. On 22nd August in that year the Applicant applied to the Tribunal for a review of that decision. 

  2. The Applicant did not provide any additional information to the Tribunal with his application. The Tribunal invited the Applicant to attend a hearing on 18th October 2006. He replied to the invitation saying that he wished to attend the hearing, and needed the assistance of an interpreter in the Mandarin language. 

  3. On the day of the hearing the Applicant produced a copy of his passport issued by the People's Republic of China. The Applicant gave oral evidence at the hearing saying that he had become involved in the practice of Falun Gong in 1999 before it was banned by the Government.  He claimed that he came under adverse notice of the authorities in March 2005 whilst driving a Falun Gong leader out of the city to evade the authorities.  They were stopped by the police and arrested, and he was detained for eight days.  The Falun Gong leader was imprisoned for three years. 

  4. The Applicant claimed to have been kept under surveillance after he was released, and made the decision to come to Australia so that he could practice Falun Gong without fear of retribution from the authorities. 

  5. The Tribunal Member asked the Applicant a number of questions about the circumstances that led to his leaving China, and about his claim to be a Falun Gong practitioner. The Tribunal referred him to independent information relating to Falun Gong, and asked the Applicant to demonstrate some of the Falun Gong movements. 

  6. The Tribunal noted at page 69 of the Court Book that the Applicant had no knowledge of Falun Gong exercises, and was not able to demonstrate any other exercise which he considered to be Falun Gong.  The Tribunal noted at page 70 of the Court Book that it commented on the Applicant's lack of knowledge of Falun Gong core activities, and the Applicant's lack of involvement with the Falun Gong group in Australia. 

  7. The Tribunal told the Applicant these matters raised doubts for the Tribunal as to whether the Applicant was indeed a Falun Gong practitioner as he had claimed to be. The Tribunal noted that the Applicant stated that he was not very involved with Falun Gong, and his main activity was to transport Falun Gong members to their secret meetings. 

The Tribunal’s findings and reasons

  1. The Tribunal's findings and reasons are set out on pages 70 through to 72 of the Court Book.  The Tribunal accepted that the Applicant was a citizen of China, and of course the Tribunal had the evidence of the Applicant's Chinese passport upon which it could rely. However, the Tribunal was not satisfied that the Applicant was a credible or truthful witness. 

  2. The Tribunal said at page 70 of the Court Book:

    The Tribunal is not satisfied that the applicant provided a truthful account of his circumstances in China, and it does not accept as credible his claim that he is a Falun Gong practitioner or that he has been implicated in Falun Gong activities.

  3. The Tribunal went on to say at page 71 of the Court Book:

    In the present matter, the Tribunal is not satisfied as to the applicant's general credibility. The applicant claims he has had a long association with Falun Gong and yet he was unable to demonstrate to the Tribunal any meaningful understanding or knowledge regarding Falun Gong activities. 

  4. The Tribunal finds that the Applicant could not provide meaningful details regarding these matters because he is not a genuine Falun Gong practitioner.  The Tribunal finds that the Applicant fabricated the claim to enhance his protection visa application. The Tribunal does not accept as credible the Applicant's claim that he was or is a Falun Gong practitioner.  

  5. For these reasons, the Tribunal found that the Applicant did not have a well-founded fear of persecution in China for a Convention reason, and affirmed the decision not to grant the Applicant a Protection (Class XA) visa. 

The application for judicial review

  1. The Applicant commenced proceedings for judicial review in this Court. He filed an amended application and, whilst the amended application was out of time, I was informed that the First Respondent Minister was not prejudiced by this late document and I granted leave to file the amended application in Court. 

  2. In that amended application, the Applicant sets out three ground for relief:

    (a)The Tribunal failed to refer to sufficient independent   information for the consideration of my application.

    (b)The Tribunal failed to provide adequate evidence and materials for the decision of my application, the Tribunal failed to consider my application according to section 91R of the Migration Act.

    (c)The Tribunal failed to notify me the reason or part of the reasons for affirming the decision in accordance with s.424A of the Migration Act 1958.

  3. The amended application also includes further ground alleging that the Tribunal failed to carry out its statutory duty containing particulars which refer to the decision of the High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27.

  4. The Applicant was content to rely on the written material in his amended application, and did not seek to make any further submissions.

  5. The solicitor for the Minister, Mr Cramer, addressed the Court bringing to the Court's attention the fact that the Applicant's original application had alleged bias on the part of the Tribunal, but that this claim had not been repeated in the amended application.  I ruled that, in my view, this would mean that the Applicant was not pressing a claim of bias, and I raised that matter with the Applicant. The Applicant chose not to address in reply.

  6. Turning to the three grounds of review, the first one is a claim that the Tribunal failed to refer to sufficient independent information for the consideration of his application. It is well-established that the choice and assessment of country information is a factual matter for the Tribunal.  I am referred to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].

  7. The solicitor for the Minister submits that the Applicant's first ground is misconceived, but points out, in any event, that it is clear that the Tribunal considered independent information from a variety of sources.  In my view, it is a factual matter for the Tribunal as to what information it considers, and no error is demonstrated by this ground, which accordingly ought to be dismissed. 

  8. The second ground alleges that the Tribunal failed to provide adequate evidence and materials for its decision and failed to consider the application according to s.91R of the Migration Act. There is no evidence to show that the Tribunal did overlook any of the considerations that it was required to take into account.

  9. The solicitor for the Minister submits correctly, in my view, that the Tribunal’s findings were open to it for the reasons that it gives in the decision, and that there is nothing to indicate that any of the considerations that the Tribunal was required to take into account were overlooked.

  10. I am also referred to the decision of Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 where it was made clear that it is for the Applicant to make out his claims, not the Tribunal. In my view, that submission is correct, and no jurisdictional error has been demonstrated.

  11. The third ground is an allegation of a breach of s.424A of the Migration Act, but no particulars are provided as to how that Act has been breached, or how that section has been breached.

  12. The solicitor for the Respondent submits that it was clear from the Tribunal's reasons that the Tribunal's concerns about the credibility of the Applicant's claims were discussed at the hearing, so there is no issue of denial of procedural fairness in any circumstances similar to those considered by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592.

  13. In my view, that submission is correct.  I note that at page 70 of the Court Book the Tribunal squarely brought to the Applicant's attention its concern about his lack of knowledge of Falun Gong core activities, and his lack of involvement with Falun Gong in Australia. 

  14. In any event, the Tribunal's decision was based on the Applicant's own evidence, and its assessment of the credibility of that evidence. The Tribunal also based its decision on country information, the substance of which that the Respondent submits was put to the Applicant at the hearing. 

  15. Consequently, there is no breach of s.424A of the Migration Act because the information that the Tribunal relied upon fell within the s.424A(3)(a) and (b). The Tribunal relied on independent information, and on information that the Applicant gave to the Tribunal for the purpose of the application. There is no breach of s.424A of the Migration Act.

  16. The amended application does, as I said earlier, contain an exposition of the law relating to s.424A of the Migration Act. It is a familiar exposition on the subject of s.424A of the Act, and it has appeared in countless numbers of applications to this Court. The fact is that there is no evidence of a breach of s.424A of the Migration Act.

  17. I am mindful of the fact that the Applicant is not legally represented.  I have scrutinised the Tribunal decision myself with some care in order to ascertain whether there is an arguable case that the Tribunal fell into jurisdictional error for any reason. I am satisfied that there is not.

  18. The Tribunal decision is a privative clause decision, as defined by sub-section 474(2) of the Migration Act. Accordingly, it is not subject to orders in the nature of certiorari or mandamus which the Applicant seeks. Accordingly, the application will be dismissed.

  19. I note that I have, at the directions hearing, previously made an order that the title of the First Respondent is now Minister for Immigration and Citizenship. I propose to make an order dismissing the application, and I will hear submissions on the subject of costs.

  20. There is an application for costs on behalf of the First Respondent. The amount sought is $3,000.00. The Applicant has been wholly unsuccessful in his claim, and in my view, it is appropriate to make an order for costs. The amount of $3,000.00 is sought, which is well within the scale provided by the Federal Magistrates Court Rules.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  16 April 2007

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