SZKBI v Minister for Immigration
[2007] FMCA 1753
•25 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKBI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1753 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his membership of Falun Gong – allegation of bias – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65, 424A, 425, 474 |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 361 |
| Applicant: | SZKBI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 178 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 September 2007 |
| Date of Last Submission: | 25 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Solicitors for the Respondents: | Ms Kantaria |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 178 of 2007
| SZKBI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of China. He asks the Court to set aside a decision of the Refugee Review Tribunal that was signed on
5th December 2006 and handed down on 22nd December 2006.
The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
The background to this matter is that the applicant arrived in Australia on 12th March 2006. He applied for a protection (Class XA) visa on 20th April 2006. He sought protection because he claimed that he became a Falun Gong member in China in the year 2000 because of his bad health. He claimed that in July 2005 the police found that he received support from Falun Gong and was actually a senior member of Falun Gong. He claimed that his home was searched and that he was detained. He claimed that whilst under interrogation by the police he suffered severe physical torture. Eventually he had to pay to secure his release. He claims a fear that he would suffer further persecution from the Chinese authorities if he were to return to China.
A delegate of the Minister refused the application for a visa on 11th July 2006.
Application to the Refugee Review Tribunal
On 14th August 2006 the applicant applied to the Refugee Review Tribunal for a review of that decision. No other documents were forwarded to the Tribunal at that time. The Tribunal wrote to the applicant on 11th September 2006 and invited him to attend a hearing. The hearing was scheduled to take place at 10:00 am on 5th October 2006. The applicant replied and indicated that he wished to attend the hearing and he would require the assistance of an interpreter in the Mandarin language.
Unfortunately, the Tribunal was not able to hold the hearing on
5th October. The Tribunal wrote to the applicant on 3rd October telling him that the new time and date for his hearing was 2:00 pm on
27th October 2006. The applicant attended the hearing which took place by video link with a Tribunal member in Melbourne.
The applicant gave evidence, with the assistance of an interpreter, and spoke about his claim to have taken up the practice of Falun Gong because of his poor health.
The Tribunal asked the applicant a number of questions about his history both in China and in Australia. He said that he practised Falun Gong with other practitioners in Australia. After the hearing the Tribunal wrote to the applicant on 30th October 2006. This letter was headed, "Invitation to Comment on Information". The letter told the applicant that the Tribunal had information that would, subject to any comments he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa.
The letter set out a number of matters that had been told to the Tribunal by the applicant at the hearing. The letter also referred to matters in the applicant's application for a protection visa. The letter told the applicant that the information was relevant because the conflicting information on a number of different details indicated that he had not been truthful in providing information to the Tribunal or to the department. The letter went on to say:
Subject to any comments you make in reply to this letter, this may lead the Tribunal to not accept other evidence you have provided including that you practised Falun Gong in China as representing the truthful account of events in relation to your claims and therefore may be the reason, or part of the reason, the Tribunal may affirm the decision under review. If the Tribunal affirmed the decision, it would result in you not being granted a visa as a result of this application.[1]
[1] See Court Book at 67
The letter invited the applicant to comment on that information and asked for those comments to be in writing and to be provided by
22nd November 2006. The applicant replied to that letter on
22nd November 2006 and provided some brief comments about the matters raised in the Tribunal's letter. Quite clearly the Tribunal's letter was intended to comply with the requirements of s.424A of the Migration Act.
The Tribunal handed down its decision on 22nd December 2006.
A copy of the Tribunal decision record appears at pages 75 through to 103 of the Court Book. In the Tribunal decision record the Tribunal set out under the heading, "Claims and Evidence", an account of the matters considered. The evidence considered was dealt with under these headings:
a)Summary of claims;
b)The hearing;
c)After the hearing;
d)The applicant’s reply.
The Tribunal set out the applicant's claims in the protection visa application, an account of his evidence at the hearing; the s.424A letter sent to the applicant on 30th October; and the applicants reply, dated
2nd November 2006.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 83 through to 93 of the Court Book. The Tribunal accepted that the applicant was a citizen of the People's Republic of China based on the fact that he held a current passport issued by the People's Republic of China.
The Tribunal then dealt with the question of whether the applicant was a Falun Gong practitioner and whether, if he were to return to China, he would face a real chance of persecution in the reasonably foreseeable future for reasons of his religious belief. The Tribunal considered some independent information about Falun Gong generally and about Falun Gong in both China and in Australia. It is clear that the Tribunal consulted a number of sources and the information about Falun Gong is set out on pages 84 through to 90 of the Court Book.
The Tribunal noted that the applicant claimed to have commenced practising Falun Gong in the year 2000 but he did not consider himself to be a senior member. The Tribunal noted the applicant claimed that he instructed beginners in the practice of Falun Gong and said that he had read the texts Falun Gong and Zhuan Falun written by the founder of the movement, Lee Longzhi. The Tribunal, however, noted that the applicant appeared to know very little of the basic practice or exercises which he claimed to have instructed to other Falun Gong practitioners.
The Tribunal considered the material in the texts Zhuan Falun and Falun Gong and referred to a chapter about a specific set of exercises that appeared in the book Falun Gong. The Tribunal found:
The applicant appeared to know nothing of this, despite his claim to have read those texts and followed their instructions in order to practise Falun Gong exercises and to teach others. On this basis the Tribunal is not satisfied that the applicant is a practitioner of Falun Gong at either the basic or advanced levels of the practice of Falun Gong.[2]
[2] Court Book at 90
The Tribunal referred to the applicant's comments in reply to the s.424A letter and to matters about the applicant's employment history. However, the Tribunal found the applicant to be evasive in his answers to a number of questions about his circumstances in Australia.
The Tribunal also considered that the answers provided by the applicant regarding his family composition were implausible.
The Tribunal held:
On the basis of the above evidence, the Tribunal is satisfied that the applicant has provided untruthful accounts of his circumstances including his personal circumstances in China, his family composition, his employment history and his circumstances since arriving in Australia.[3]
[3] Court Book 91
The Tribunal did not accept the applicant's claim to be a practitioner of Falun Gong and did not accept that he was a senior member of Falun Gong. The Tribunal did not accept that the applicant was a teacher of the basic principles and exercises of Falun Gong. The Tribunal did not accept that the applicant had been arrested and detained and tortured as a result of his beliefs nor that he had to pay a sum of money to secure his release from detention. The Tribunal did not accept that the applicant would be sentenced to gaol if he were to return to China or that the police in China had any interest in him for reasons of his claimed Falun Gong beliefs.
The Tribunal also considered a report from the Department of Foreign Affairs and Trade about the ability of people to exit China if they were people of adverse interest to the Chinese authorities. The Tribunal did not accept that the applicant was of interest to the Chinese authorities when he departed China. On a consideration of the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision not to grant the applicant a protection (Class XA) visa.
Application for judicial review
The applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit on 18th January 2007. He filed an amended application on 11th May 2007. In that application he seeks the following:
i)an order in the nature of certiorari quashing the decision of the Refugee Review Tribunal;
ii)a writ of mandamus requiring the Tribunal to redetermine his application according to law;
iii)a writ of prohibition against the respondent Minister to prevent any action being taken against him in reliance upon the Tribunal decision.
He relies upon these grounds:
i)The Tribunal failed to refer to proper independent information for the consideration of my application for a protection visa. The Tribunal had bias against me and made a decision on my application based on the officer's assumption.
ii)The Tribunal failed to assess the chance of my persecution on my return to China. The Tribunal did not believe my claims based on some wrong information. The decision was biased.
The applicant attended Court and made oral submissions. In respect of his claim that the Tribunal failed to refer to proper independent information for the consideration of his application for a protection visa, the applicant said that the Tribunal failed to consider the fact that if he returned to China he would face persecution. He said that the Tribunal did not do any research. When asked about his claim of bias on the part of the Tribunal, he replied that the Tribunal said that he was not a Falun Gong practitioner but the Tribunal could not provide any evidence to prove that fact.
He repeated the claim in his amended application that the Tribunal assumed that he was not a Falun Gong practitioner. When asked to explain his claim that the Tribunal did not believe his claims based on some wrong information, the applicant said that the wrong information was the Tribunal's assumption that he was not a Falun Gong practitioner. The applicant told the Court that he hoped that Australian law could be fair to all people and he reiterated his claim that the Tribunal had assumed that he was not a Falun Gong practitioner.
I have read the written submissions prepared on behalf of the first respondent Minister by Ms Kantaria, solicitor. She submitted that the information relied upon the Tribunal in conducting its review, and the weight that it gives to such information, is a matter for the Tribunal. She referred the Court to the decision of the Full Court of the Federal Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[4] at [11] where their Honours said:
By s.424(1) in conducting a review the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on country information. The weight it gives to such information is a matter for the Tribunal itself as part of its fact finding function. The question of accuracy of the country information is one for the Tribunal not the Court. If the Court were to make its own assessment of the truth of country information it would be engaging in merits review. The Court does not have power to do that.
[4] [2004] FCAFC 10
As to the applicant's claim of bias, the first respondent submitted that an allegation of bias is serious and much be clearly alleged and proved (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[5] [2002] FCAFC). She submitted that the applicant has not produced any evidence of bias and that there is nothing in the material before the Court that would support a finding of bias. As to the applicant's assertion that the Tribunal failed to consider whether he would be persecuted if he returned to China, Ms Kantaria has submitted that the Tribunal did turn its mind to that issue when it found:
As the Tribunal has found that the applicant has not practised Falun Gong in China or in Australia, the Tribunal finds that the applicant would not face a real chance of persecution for Convention related reasons in the reasonably foreseeable future if he were to return to China.[6]
[5] [2002] FCAFC 361 at [43]
[6] Court Book at 92
Dealing with the applicant's claims, the two grounds in his amended application actually appear to be four grounds. First, the applicant claims that the Tribunal failed to refer to proper independent information for considering his application for a visa. He told the Court that the Tribunal did not do any research; that clearly is not the case, as the Tribunal did consider independent country information which is set out at pages 84 through to 90 of the Court Book. If the applicant wished the Tribunal to consider any other information about Falun Gong it was up to the applicant to provide that information to the Tribunal in support of his case.
The applicant has twice claimed that the Tribunal was biased and made a biased decision. There is no evidence of bias. It is a rare and extreme case that bias will be seen purely by relying on the Tribunal's reasons for decision (see SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[7] and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[8]). The only evidence of bias the applicant could muster was that the Tribunal did not accept his claim that he was a Falun Gong practitioner.
[7] [2002] FCAFC 358
[8] [2002] FCAFC 361
The fact that the applicant failed to convince the Tribunal as to the bona fides of his claim is no evidence of bias. It is well established that the Tribunal does not have to provide specific evidence to disprove an applicant's claim. Section 65 of the Migration Act makes it clear that the applicant must provide evidence sufficient to satisfy the Tribunal or the Minister that the applicant meets the requirements for a visa. The applicant's claim that the Tribunal assumed that he was not a Falun Gong practitioner is no more than an assumption on the part of the applicant.
The applicant claimed that the Tribunal failed to assess the chance of his persecution on his return to China. The applicant claimed that the Tribunal failed to consider that if he returned to China he would face persecution. The Tribunal approached the case by setting for itself these questions:
The question for the Tribunal is whether the applicant is a Falun Gong practitioner and whether, if he were to return to China he would face a real chance of persecution in the reasonably foreseeable future for reasons of his religious belief.[9]
[9] Court Book at 84
Quite clearly the Tribunal asked itself the questions that it was required to ask and then set about considering whether the applicant had satisfied the Tribunal that he was a Falun Gong practitioner based on the applicant's evidence and independent country information. Having decided that it did not accept the applicant's claim to be a Falun Gong practitioner, the Tribunal then found that the applicant would not face persecution for that reason if he were to return to China. In my view, the Tribunal did approach its task of assessing the applicant's chance of persecution if he were to return to China.
As to the applicant's claim that the Tribunal did not believe his claims based on wrong information, the only information that he could produce was his assumption that the Tribunal rejected his claim based on its assumption that he was not a Falun Gong practitioner.
That ground clearly fails.
Both of the grounds referred to in the applicant's amended application and the grounds within them have not been made out. The applicant is not legally represented and I have considered the Tribunal decision and supporting material in the Court Book in order to ascertain whether any arguable case of jurisdictional error has been made out. In my view the Tribunal based its decision on credibility grounds. The Tribunal did not accept the applicant's evidence. The Tribunal based that finding on its comparison of the applicant's claims with independent country information about Falun Gong and put information to the applicant in a letter written to comply with s.424A of the Migration Act.
The applicant replied in writing and the Tribunal considered the applicant's replies. There is no breach of s.424A of the Migration Act. The Tribunal invited the applicant to attend a hearing to give evidence and present arguments about his case. The applicant attended the hearing and gave evidence with the assistance of an interpreter.
The Tribunal did not accept the applicant's evidence that he was a Falun Gong practitioner and feared persecution for that basis if he returned to China.
I note from the delegate's decision at page 45 of the Court Book that the delegate considered those same issues and similarly rejected the applicant's claim. The applicant should have been well aware when he went to the Tribunal hearing as to what the issues were and in particular that his entire claim to be a Falun Gong practitioner was a matter that was seriously in issue. There is no breach of s.425 of the Migration Act. There is no jurisdictional error.
Because the applicant has not shown any jurisdictional error on the part of the Tribunal, and I am unable to discern any jurisdictional error from my independent reading of the decision, I am satisfied that the Tribunal's decision is a privative clause decision as defined by s.474 of the Migration Act. Section 474 provides that privative clause decisions are final and conclusive; they are not subject to orders in the nature of certiorari, mandamus or prohibition. It follows that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $4,500.00. This is an appropriate matter for a costs order and I am satisfied that the sum of $4,500.00 is an appropriate figure and within the scale provided by the Federal Magistrate Court Rules.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 12 October 2007
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