SZKCD v Minister for Immigration
[2007] FMCA 1475
•24 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKCD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1475 |
| MIGRATION – Review of decision of Refugee Review Tribunal – impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.424, 424A, 44G, 91R |
| Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZKCD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 249 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 24 August 2007 |
| Date of Last Submission: | 24 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr J Mitchell |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application made to this Court on 29 January 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 249 of 2007
| SZKCD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application filed in this Court on 29 January 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 30 December 2006 and notified to the applicant’s migration adviser on 11 January 2007, which affirmed the decision of the respondent Minister to refuse to grant a protection visa to the applicant.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 24 September 2006. On 28 September 2006, the applicant applied for a protection visa (application reproduced in the Court Book (“CB”) at CB 1 to CB 29). On 19 October 2006, the application was refused and on 23 November 2006 the applicant applied to the Tribunal for review of that decision.
Essentially, the applicant’s claims to protection are that he was a Falun Gong practitioner, that prior to this he had experienced a terrible cultural revolution in China and that following his finding out about Falun Gong from others, in particular, a person who had suffered from cancer for many years, he started to practice Falun Gong. He further claimed that in July 1999 the Chinese government restrained Falun Gong, that he was arrested in January 2000 and sent to gaol for six months, and that this experience made him recall the terrible Cultural Revolution in China that had occurred in his youth. The applicant claimed that in 2003 he found someone to assist him to obtain a passport and he left China in 2006 to come to Australia.
The application for review to this Court is reproduced at CB 39 to CB 42. I note that the applicant was represented before the Tribunal by a migration adviser who was also nominated as the authorised recipient for correspondence from the Tribunal.
What appears from the material before the Court is that the Tribunal on 4 December 2006 sent three letters via facsimile transmission to the applicant’s authorised recipient. One letter invited the applicant to a hearing before the Tribunal scheduled for 20 December 2006 (reproduced at CB 46 to CB 47). Importantly, in that letter, the Tribunal advised that it had considered the material that had been put before it, but on that material was unable to make a decision in favour of the applicant. It therefore invited the applicant to a hearing to provide further evidence and argument and to make submissions in support of his claims.
The Tribunal also sent to the applicant a letter which the Tribunal described as a “s.424A letter” seeking the applicant’s comments on certain information which it said would be the reason, or part of the reason, for deciding that he was not entitled to a protection visa. This letter is reproduced at CB 49 to CB 51.
The Tribunal’s decision record also states that a letter described as a “s.424 letter,” dated 4 December 2006, was sent to the applicant’s authorised recipient inviting the applicant to provide certain information in support of his claims. This letter does not appear to have been reproduced in the material in the Court Book, but I am satisfied that such a letter was sent. I note that the terms of this letter are set out in the Tribunal’s decision record at CB 66. I am satisfied, given the notation at CB 49, that the three letters “were sent to the authorised recipient.”
What follows from the material before the Court is that the applicant did attend a hearing before the Tribunal on 20 December 2006 (CB 65.4) and the Tribunal’s account of what occurred at that hearing is set out at CB 69 to CB 72. It also appears that no response was received by the Tribunal to its two letters that had been sent to the applicant’s authorised recipient. I am satisfied that the letters were properly sent and addressed to the applicant’s authorised recipient. In light of the provisions of s.44G of the Migration Act 1958 (“the Act”), the Tribunal complied with its obligations by sending those letters, including the letter of invitation to hearing to the authorised recipient.
I note in particular the Tribunal’s consideration of the issue of there being no response to those two letters in its decision record at CB 68 to CB 69. I am satisfied that the Tribunal was entitled, following that consideration, to proceed in the way that it did.
Essentially, the Tribunal’s findings and reasons are set out in its decision record at CB 76 to CB 80, and I note again the consideration that the Tribunal recorded in relation to the s.424A and s.424 letters, as it described them (CB 77). In my view, the Tribunal found that in relation to a number of general claims about the situation in the People’s Republic of China, without further details, these claims did not establish that the applicant had a well founded fear of persecution, in context, as is understood within the requirements pursuant to the Refugee Convention.
In relation to the specific claims made by the applicant, the Tribunal found that, having regard to what the applicant himself had put at the hearing before the Tribunal and having regard to the independent country information that was before it, the applicant was not a credible witness (CB 79.4). It made this finding on the basis, in particular, that the applicant had made conflicting statements to the Tribunal at the hearing (CB 78.3), that some of his explanations were implausible, that there were inconsistencies in some of the applicant’s statements, that the applicant had no understanding of Falun Gong exercises (CB 78.7) and that some of the applicant’s explanations as to the benefits to be obtained from Falun Gong were not in accordance with the independent country information and the Tribunal found the applicant’s explanation for this to be implausible.
In relation to the applicant’s claim that he had attended a protest at Central Railway after having arrived in Australia, the Tribunal said that while it accepted that he may have been at this demonstration, it did not accept that the applicant was there in his capacity as a Falun Gong follower (CB 79.6). In relation to the applicant’s claim relating to the effects of the Cultural Revolution, the Tribunal found that such discrimination, if indeed, there had been any, was not such that the Tribunal could find that there was a real chance of systemic and discriminatory conduct in the future for a Convention reason (CB 79.9).
The Tribunal rejected the applicant’s claims with regard to the Cultural Revolution as having any lingering effect regarding the attitude of the government of the People’s Republic of China to Falun Gong. The Tribunal could not be satisfied, on the evidence before it, that the applicant had a well founded fear of persecution for a Convention reason if he were to return to China and therefore the Tribunal affirmed the decision under review.
The application before the Court contains the following as the grounds of the application:
“1. I am a Falun Gong follower.
2. I will face a real chance of persecution if I return to the PRC now, or in the foreseeable future.”
I note that these assertions are also repeated in the applicant’s affidavit of 29 January 2007, which he filed with his application to the Court.
The applicant appeared in person with the assistance of an interpreter in the Mandarin language. Mr J Mitchell of Counsel appeared for the respondent Minister. I also have before me Mr Mitchell’s written submissions filed 20 August 2007.
Before the Court today the applicant stated that the Tribunal refused his claim and that this refusal was not based on evidence but based on assumptions, and that the decision was not made according to law. The applicant subsequently explained that this was because he is a Falun Gong follower and that in those circumstances the Tribunal’s decision was based, incorrectly, on the assumption that he was not. The applicant also challenged the decision made by the Minister’s delegate.
During the course of the hearing this morning, I explained to the applicant the role of the Tribunal and its function, and the role of the Court. I invited the applicant to understand that the Court’s proper role was to ensure that the Tribunal had performed its function according to law, not to make a determination as to whether the applicant was a refugee or not a refugee. In this regard, therefore, the mere assertion by the applicant today that he is indeed a Falun Gong practitioner and therefore entitled to protection in Australia is not sufficient for him to succeed in his application today, if that is all that he is putting to the Court.
The applicant’s complaint that the Tribunal’s decision was not based on evidence is not made out on the material that has been put before the Court. The Tribunal decision record reveals that the Tribunal did have regard to the material that the applicant had put before it, and in particular, had regard, although not exclusively, to what the applicant himself had put to the Tribunal at the hearing that it conducted with him.
I can understand that the applicant feels aggrieved that the Tribunal did not believe him, but as I explained to the applicant, it is the Tribunal’s proper statutory function to consider the material that is put before it and to make findings of fact, including findings on credibility. As McHugh J has described in the matter of Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 (at [67]), this is a matter for the Tribunal as the decision maker “par excellence.” To the extent that the applicant seeks to challenge the Tribunal’s adverse credibility finding then, in all the circumstances, this does not rise above a request for impermissible merits review before this Court. If the applicant’s complaint is that the Tribunal’s finding that he was not a Falun Gong follower was an assumption, and this is said in the sense that the Tribunal ignored evidence that indicated the contrary, then such complaint is plainly not made out on the material that is before the Court.
In relation to the applicant’s claims to be a Falun Gong practitioner, the Tribunal considered the applicant’s claims and on the material before the Court now, it was open to the Tribunal to find that the applicant was not a credible witness.
I should just note that in relation to the Tribunal’s findings regarding the complaints of the effects of the Cultural Revolution, the Tribunal relied on independent country information, and again, its finding in this regard was plainly open to it on the material that was before it. In relation to the applicant’s claim that he had attended a demonstration after arrival in Australia, having found that the applicant was not a Falun Gong practitioner or follower, then it was plainly open to the Tribunal to find that he had not attended the demonstration in that capacity, and in any event, it was also open to the Tribunal to find that the applicant was attending the demonstration otherwise than for the purpose of strengthening his refugee application. I saw this finding as being with reference to s.91R(3) of the Act.
I also note the submissions helpfully put forward by Mr Mitchell, and I agree with those submissions, in particular that the Tribunal’s decision was based on a rational assessment of the genuineness of the applicant’s claims to have been a Falun Gong follower and practitioner. I note also Mr Mitchell’s submissions in relation to the likelihood of further persecution based on what occurred in the Cultural Revolution and agree with those submissions in relation to the remainder of the applicant’s claims that the Tribunal was not satisfied of those claims, and on that basis, affirmed the decision under review. I note in particular, the various letters sent to the applicant inviting comment and the invitation to a hearing before the Tribunal. The Tribunal did comply with its obligations pursuant to Division 4 of Part 7 of the Act. I am satisfied that the determinative issues were raised with the applicant at the hearing that the Tribunal conducted with him. I should just note, importantly, that the Tribunal’s very comprehensive account, in setting out the relevant procedures that it adopted, its comprehensive hearing report and its analysis, does not, in my view, reveal any jurisdictional error on its part.
To the extent that the applicant also sought to challenge the delegate’s decision today, plainly the Tribunal conducted a review of the merits of the applicant’s claims to be a refugee. The applicant has therefore had a review of the delegate’s decision. I note that even if there were any defect in that decision, and nothing has been put before the Court to show such defect and none is apparent on the material before the Court, such defect would have been cured by the review conducted by the Tribunal. That is, even putting to one side whether the Court should entertain such a complaint in any event.
Neither in what the applicant has put before the Court, nor otherwise from the material put before me, can I discern jurisdictional error in what the Tribunal has done, and therefore the application to this Court is dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 11 September 2007
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