SZJYU v Minister for Immigration - [2007] FMCA 495

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJYU v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 495

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), pt 8, div 2
Migration Act 1958 (Cth), s.474

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Applicant:

SZJYU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG13 of 2007

Judgment of:

Emmett FM

Hearing date:

27 March 2007

Date of last submission:

27 March 2007

Delivered at:

Sydney

Delivered on:

27 March 2007

REPRESENTATION

Applicant appeared on own behalf

Counsel for the Respondent:

Mr S. Free

Solicitors for the Respondent:

Mr O. Young, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG13 of 2007

SZJYU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8, div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 November 2006 and handed down on 5 December 2006.
The applicant is a citizen of The People's Republic of China (“the PRC”) and arrived in Australia on 26 March 2006, having legally departed from the PRC on a passport issued in his own name and a visa issued on 27 February 2006.
On 5 May 2006, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural Affairs (“the Department”). In support of that protection visa application the applicant furnished a statement in which he claimed that he feared persecution by the PRC government because he is a Falun Gong practitioner.
On 1 August 2006, a delegate of the first respondent refused the applicant's application for 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 (“the Convention”).
On 31 August 2006 the applicant lodged an application for review of the delegate's decision with the Tribunal.
The applicant provided no further material in support of that application, however, attended a hearing before the Tribunal, on

13 November 2006, at which he gave oral evidence. The Tribunal in its decision noted in detail the claims made by the applicant at the hearing and, in particular, noted questions it asked the applicant in relation to his claim of a well-founded fear of persecution in the PRC by reason of being a Falun Gong practitioner. The Tribunal also had regard to independent country information.
The Tribunal noted with specificity the areas that it explored with the applicant. Ultimately, the Tribunal was not satisfied that the applicant was truthful about his claim of involvement in Falun Gong in the PRC. The Tribunal found that the applicant's evidence in relation to the exercises was rehearsed and, because the Tribunal did not accept that the applicant had been involved in Falun Gong in the PRC, the Tribunal was not satisfied that the applicant practised Falun Gong in Australia. The Tribunal noted that the applicant had no corroborative evidence of any practice carried out by him in Australia.
At the heart of the Tribunal's adverse credibility findings were the internally inconsistent claims made by the applicant at the hearing. The Tribunal noted particular inconsistencies and concluded that:
“The applicant's propensity to change his evidence in order to make his story "fit" leads the Tribunal to the finding that the applicant is not a witness of truth.”
The Tribunal noted that, at the conclusion of the hearing, it had pointed out to the applicant that there were contradictions in his claims and that it had some concerns with his credibility and noted that the applicant made no comments. The Tribunal found that the applicant's claims of harm and threats of harm by the PRC authorities arising from his practice of Falun Gong to be a fabrication. The Tribunal, having considered the evidence as a whole, found that it was not satisfied that the applicant is a person to whom Australia has protection obligations and accordingly affirmed the decision under review.
On 2 January 2007, the applicant filed an application seeking judicial review of the Tribunal's decision in this Court and identified the following grounds:
“1. the RRT decision was affected by Jurisdictional error in that the RRT acted capriciously and arbitrarily (sic) and formed its assessment of satisfaction on illogical reasoning.
Particulars:
The Tribunal stated it could not accept as credible the applicant’s claim that the PRT authorities have any on-going interest in him given the significant adverse findings in credibility in regard to his Falun Gong practice. The Tribunal pointed out the inconsistencies given by the applicant at the hearing. The Tribunal failed to offer the applicant a fair opportunity to comment on such inconsistencies.”
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter. Before the applicant was invited to make submissions in support of his application, the grounds of his application were interpreted for his assistance.
The applicant was unable to make any meaningful submission in support of his application, other than to say that the decision was not fair to him. Following completion by counsel for the first respondent of his submissions, the applicant was given an opportunity to respond. The applicant, for the first time, stated that when he had been asked questions by the Tribunal about Falun Gong, perhaps, he had not clearly heard the questions.
If the applicant was intending to make a complaint about the quality of the interpretation, such a complaint would require evidence. The applicant was given leave on 9 February 2007 to file and serve an amended application and any additional evidence by 2 March 2007. No evidence has been filed by or on behalf of the applicant and no such complaint of this nature has been made to this Court until after Counsel for the first respondent had completed his submissions. There is nothing on the face of the decision to suggest that the applicant had any difficulty with understanding the questions put by the Tribunal or in delivering responsive answers.
The applicant also submitted before this Court that the friend who helped him leave the PRC had since been arrested and that he sought an adjournment to provide evidence of the reasons for his friend's arrest. Again, there is no evidence before this Court in respect of that matter. There has been sufficient time, in my view, for the applicant to file and serve any evidence in support of his application. In any event, subsequent events that were not before the Tribunal of the nature indicated by the applicant cannot be relevant to the question of whether or not the Tribunal made its decision without jurisdictional error. In the circumstances, to the extent that the applicant was seeking an adjournment, that application is refused.
Ground 1 alleges that the Tribunal acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reason. That assertion is not accompanied by any particulars or evidence.
It is plain from the Tribunal's decision that it had understood the claims made by the applicant. It explored those claims with the applicant and identified areas of concern about the applicant's evidence. The Tribunal decision identified examples of the inconsistencies that led it to conclude that the applicant was not a witness of truth and noted that it had pointed out to the applicant that there were contradictions in his claims that caused it concern about his credibility. The findings and conclusions made by the Tribunal were open to it on the material and evidence before it and for which it provided reasons.
The Tribunal made its adverse credibility findings, aware that a Tribunal should adopt a liberal attitude in considering the credibility of an applicant's claims in accordance with the principles in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451. There is nothing in the Tribunal's decision to suggest that it acted capriciously or arbitrarily or formed its assessment of satisfaction on illogical reasoning. I note that, in any event, illogicality is not by itself necessarily a ground which founds jurisdictional error.
Accordingly, ground 1 is not made out.
Ground 2 of the applicant's application complains that he was not given a fair opportunity to comment on inconsistencies in his evidence. As referred to above in these Reasons, the Tribunal noted that, at the conclusion of the hearing, it was pointed out to the applicant that there were contradictions in his claims about which it had concerns regarding his credibility and noted that the applicant made no comment. In the circumstances, an opportunity was provided to the applicant to comment upon his inconsistencies.
As submitted by counsel for the first respondent, the decision of the Delegate had made clear to the applicant that his claims were devoid of details and lacked substance. Accordingly the applicant was on notice that the genuineness of his commitment to Falun Gong was an issue before the Tribunal.
Accordingly, ground 2 is not made out.
The Tribunal otherwise complied with its obligations under the statutory regime in the conduct of its review, including the making of its decision. The Tribunal's decision is not affected by jurisdictional error and is therefore a privative clause decision.
Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere. The proceeding before this Court, commenced by way of application filed on 2 January 2007, is dismissed.

RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 16 April 2007