SZKAE v Minister for Immigration

Case •

[2007] FMCA 580

•

10 April 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKAE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 580
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People’s Republic of China claiming fear of persecution as a Falun Gong practitioner – credibility – delay – no reviewable error.
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424A, 474
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Applicant: SZKAE
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 81 of 2007
Judgment of: Scarlett FM
Hearing date: 10 April 2007
Date of last submission: 10 April 2007
Delivered at: Sydney
Delivered on: 10 April 2007

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms McDonald
Solicitors for the Respondent: DLA Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $2,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 81 of 2007

SZKAE

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 decision was signed on 29th November 2006, after a hearing that took place on 2nd November. The Tribunal handed down its decision on 12th December 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. 

  2. The Applicant seeks an order that her application for review of the delegate's decision should be returned to the Refugee Review Tribunal for reconsideration. This of course will involve an order by the Court in the nature of certiorari quashing the Tribunal decision.

Background

  1. The background to this case is that the Applicant is a citizen of the Peoples Republic of China. She arrived in Australia on 19th April 1999.  She applied for a Protection (Class XA) visa on 23rd May 2006.  On 15th August 2006, a delegate of the Minister refused her application for a visa. The Applicant then sought a review of that decision from the Refugee Review Tribunal.

  2. The Applicant submitted her application on 12th September 2006.  There was no additional information supplied with her application.  The Tribunal wrote to the Applicant on 25th September 2006 inviting her to attend the hearing on 2nd November.  The Applicant attended that hearing and gave evidence. She was assisted by an interpreter in the Korean language because I understand that Korean is her first language.

  3. The basis of her application is that the Applicant fears persecution if she were to return to China on the basis that she is a practitioner of Falun Gong. The Applicant told the Tribunal that she was of Korean ethnicity and learnt Korean at school. She said that she began practising Falun Gong in 1997 or 1998 and came under adverse notice from the police in 1998.  She left China for Australia in April 1999 and commenced practising Falun Gong in Australia. 

  4. The Tribunal asked the Applicant a number of questions to do with her knowledge of Falun Gong and her practise of it. The Tribunal asked amongst other things how many exercises there were and what were the names of the exercises.  The Applicant was not able to answer that question.  The Tribunal asked the Applicant why it had taken her over seven years to apply for a protection visa in Australia. The Applicant said that she was scared that she would be arrested because she had illegally used a Korean passport to travel to Australia.

  5. The Tribunal handed down its decision on 12th December 2006. A copy of the decision can be found at pages 72 through to 84 of the Court Book.  In the decision, the Tribunal describes the evidence given to the Tribunal appearing and, on pages 78 through to 81, refers to a number of sources of background information about Falun Gong in China.  The Tribunal's findings and reasons can be found on pages 81 to 84 of the Court Book.

The Tribunal’s Findings and Reasons

  1. The Tribunal accepted that the Applicant is a citizen of the Peoples Republic of China.  However, the Tribunal stated that it did not accept that the Applicant was a genuine Falun Gong practitioner because she had limited knowledge of Falun Gong practice. When questioned by the Tribunal she was unable to provide information on Falun Gong and could not detail the number of exercises or any of their names or the leader of Falun Gong or the main book of teachings.  The Tribunal then went on at page 82 to set out other reasons as to why the Tribunal did not accept the Applicant's evidence about this point. 

  2. At page 82 the Tribunal said:

    The Tribunal therefore does not accept that the applicant is a Falun Gong practitioner now or previously. The Tribunal as a result does not believe that the applicant is being truthful.

  3. The Tribunal also noted the delay on the part of the Applicant in applying for a protection visa.  It will be recalled that the Applicant arrived in Australia on 19th April 1999 but did not apply for a protection visa until 23rd May 2006.  The Tribunal had this to say:

    In addition, an applicant's delay in applying for refugee status is a relevant consideration in the assessment of credibility of an applicant's claims for refugee status.  The period of time that has elapsed between an applicant's arrival in Australia and the time when he or she claims refugee status is considered when assessing the genuineness or at least the depth of an applicant's subjective fear of persecution.  The Tribunal notes that the applicant only applied for refugee status after she was detained in Australia, approximately seven years after her arrival in Australia in April 1999.  The Tribunal does not accept the applicant's reason that she was too scared to apply when it considers the timeframe involved.  The Tribunal finds that this adds to its finding that the applicant is not credible.

  4. The Tribunal did not accept that there was a real chance of the Applicant being persecuted if she were to return to China and was not satisfied on the evidence before it that the Applicant had a well-founded fear of persecution within the meaning of the Convention.  The Tribunal affirmed the delegate's decision not to grant the Applicant a Protection (Class XA) visa. 

The Application for Judicial Review

  1. The Applicant has sought judicial review of this Tribunal decision by means of an application and affidavit filed on 10th January 2007.  In the application, the Applicant sets out four grounds:

    a)The first ground is a statement that her application for a visa was refused by the Tribunal on 12th December 2006. 

    b)The second ground complains that the Member of the Refugee Review Tribunal did not use current country information. 

    c)The third ground says that the Applicant was not given the opportunity to make comments on her case because the Member of the Refugee Review Tribunal never sent her any. 

    d)Finally, the Applicant claimed that her family have a long history of persecution in China.

  2. The Applicant filed in Court a written submission in which she details the history of her matter and, in six paragraphs, sets out her claims.  Those claims are as follows, and I will use the numbering that appears in the Applicant’s document:

    6.In the Decision the Tribunal member mostly makes accent on situation in China at the time when I left the country, in April 1999, but not on situation in China now. In 1999, the persecution of the Falun Gong followers was unofficial but now it is official and all countries including Australia recognise that.

    7.The Tribunal puts too much weight on the timeframe of the lodgement of an application for a protection visa to the Department of Immigration,  but in the Migration Regulation it is no time limitation on lodgement of an application for a protection visa.

    8.The Tribunal did not accept that I was a genuine Falun Gong practitioner because I could not provide information about April 1999 demonstration in Beijing but in April 1999 I already was in Australia.

    9. The Tribunal claims that persecution of the Falun Gong followers started in June 1999 but April 1999 demonstrations started after a number of Falun Gong followers were arrested by the China Government.

    10. The Tribunal did not consider any new information about persecution of the Falun Gong followers in China but under s.416 only new information to be considered in later applications for review.  This information has to be taken into account.

  3. The Applicant told the Court that she could not go back to China because of her practise of Falun Gong.  She said she could not tell all of these things to the Tribunal because she was very nervous.  She was in fact so nervous that she could not tell the Tribunal that she was nervous. She went on to say that she does not have a visa and is not allowed to work and therefore does not have enough money to survive.

  4. I have read the outline of submissions prepared by Ms McDonald, the solicitor appearing on behalf of the First Respondent Minister. She submits that the Refugee Review Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act and that this section operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error. It refers the Court to the decision in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476.

  5. Ms McDonald further submits that the Applicant's application and accompanying affidavit do not identify any jurisdictional error and are not particularised. The First Respondent submits that the Applicant was given an opportunity to present her claims; second that the Tribunal referred to country information in relation to the history of the banning of Falun Gong but was under no obligation to consider country information, particularly in a case where the Tribunal rejected an Applicant's claims on the basis of an adverse credibility finding.

  6. It is further submitted that there is no error in the Tribunal's adverse credibility finding and submits that there is no jurisdictional error in the Tribunal's decision. The reason for this, it is submitted, is that the primary basis for the adverse credibility finding was information that the Applicant gave for the purpose of her application and falls within the exclusion set out in sub-section 424A3(b) of the Migration Act. The reference to country information falls within the exception in sub‑s.424A3(a) and therefore does not attract an obligation under s.424A.

  7. In reference to the comments by the Tribunal about the Applicant's delay in applying for a protection visa by waiting seven years to do so, the First Respondent submits that this information was given by the Applicant for the purpose of her application even if it was given in response to questioning as it involved uncontentious factual material.  I am referred to the recent decision of NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 which is a case that contains an analogous factual situation to the present case and again refers to a delay in obtaining a protection visa.

  8. The submission points out that the Full Court of the Federal Court concluded at [60] and [61] that the exception in s.424A3(b) applies where the information in question related to uncontentious factual material. In my view those submissions correctly state the law.

  9. The primary reason why the Tribunal did not grant the Applicant's application is because the Tribunal was not satisfied about the Applicant's credibility. That credibility finding was such that the Tribunal did not accept that the Applicant was a Falun Gong practitioner or had ever been.  It is that finding on a fact as basic as the Applicant's claim to be a Falun Gong practitioner that affects, and affects negatively, the Applicant's entire case which is predicated upon her being a Falun Gong practitioner.

  10. It is trite law, as paragraph 14 of the First Respondent's submission says, that findings in relation to credibility will not be disturbed by the Court unless they were not reasonably open on the evidence. (See Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). Further findings of fact based on an assessment of credit that is itself open on the material or has some rational basis are not reviewable by the Court (see Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [558] to [559]). The adverse credibility finding was open to the Tribunal. The Tribunal had material before it upon which it could make that finding. The Tribunal found the Applicant's evidence unconvincing and at the hearing the applicant was unable to provide answers to basic questions about Falun Gong. The fact that the Applicant was not able to answer those questions cast a serious doubt upon her credibility.

  11. There is no breach of the requirements of s.424A of the Migration Act. The Tribunal referred to country information which comes under the exception in s.424A(3)(a). The Applicant's evidence upon which the Tribunal made such an adverse credibility finding is information that the Applicant gave for the purpose of her application and falls within sub-section 424A(3)(b). The reference to the delay in applying for a protection visa is in my view uncontentious factual material. It cannot be argued that the Applicant delayed seven years in applying for a protection visa. There is no alternative date proposed and simple mathematics indicates a delay of seven years.

  12. In my view, it was open to the Tribunal to consider that evidence as a consideration relevant to its assessment of the credibility of the Applicant's claims for refugee status. It matters not that the uncontentious factual material given by the Applicant to the Tribunal was given in response to questioning.  In my view, the situation has been quite clearly set out, with the very greatest of respect, by the Full Court of the Federal Court of Australia in NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [60] to [61] and in my view I am obliged to follow that decision which is binding upon the Federal Magistrates Court. There is no breach of s.424A of the Migration Act.

  13. The Applicant's claim the Tribunal did not use current country information does not establish jurisdictional error. It is up to the Tribunal to decide which evidence, whether it is country information or other evidence, that it considers relevant.

  14. The Applicant claimed in her submission that the Tribunal put too much weight on the time frame of her lodgement of an application for a protection visa and points out that there is no time limit on lodging an application for a protection visa.  Indeed, there is no time limit.  What the Tribunal did, however, was look at that situation as a factual matter when assessing the Applicant's credibility.

  15. The Applicant's challenge to the fact that the Tribunal did not accept that she was a genuine Falun Gong practitioner because she said that she could not provide information about the April 1999 demonstration in Beijing, at which time the applicant was already in Australia, is no more than an attempt at merits review; in other words, a challenge to the Tribunal's factual finding. In any event, the April 1999 demonstration was only a small part of the evidence relating to Falun Gong and it was the Applicant's overall evidence that caused the Tribunal to form the view that the Applicant's knowledge of Falun Gong was significantly inadequate to such an extent that the Tribunal did not believe that she was a practitioner.

  16. The Applicant also refers to s.416 of the Migration Act which says that only new information is to be considered in later applications for review. This ground is misconceived. Section 416 is only relevant when the Tribunal is considering a subsequent application. The Applicant has only made one application for a protection visa and s.416 does not mean that on the review of the application the Tribunal is obliged to rely only on information that is up to the minute. That ground must fail.

  17. The fact is that the Tribunal did not accept the Applicant as a credible witness and on such a severe finding of credibility the Applicant's case failed. There is no jurisdictional error. The Applicant is not legally represented. My reading of the Tribunal decision and the supporting material does not indicate any arguable case for jurisdictional error. As there is no jurisdictional error, the decision is a privative clause decision as defined in sub-section 474(2) of the Migration Act. Under sub‑section (1) of s.474, a privative clause decision is final and conclusive and is not subject to certiorari, mandamus, prohibition or other constitutional relief. It follows that the application must be dismissed. I have previously made an order changing the title of the first respondent to Minister for Immigration & Citizenship. The only matter now to consider is the question of costs.

  18. There is an application for costs on behalf of the Respondent Minister. The Applicant has been wholly unsuccessful in her claim and there is no reason why a costs order should not be made in favour of the successful party. The amount sought $2,400.00, is a very modest sum and is well within the scale provided by the Federal Magistrates Court Rules. I propose to make the order sought.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  19 April 2007

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