SZKDX v Minister for Immigration

[2007] FMCA 704

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKDX v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 704

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 – applicant a citizen of China claiming fear of persecution as a Falun Gong practitioner – merits review – no reviewable error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424A, 425, 474

SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205
SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Abebe v Commonwealth (1999) 197 CLR 510

Applicant: SZKDX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 379 of 2007

Judgment of: Scarlett FM

Hearing date: 2 May 2007

Date of last submission: 2 May 2007

Delivered at: Sydney

Delivered on: 2 May 2007

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr O'Donnell

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent's costs fixed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 379 of 2007

SZKDX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 22^nd December 2006 and handed its decision down on 18^th January 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The Applicant seeks judicial review of that decision. 

Background

1. The Applicant is a citizen of the People's Republic of China who arrived in Australia on 14^th June 2006. She applied for a Protection (Class XA) visa on 6^th July but it was refused on 29^th September 2006.  The Applicant then, on 2^nd November applied to the Refugee Review Tribunal for a review of the delegate's decision.

2. The Applicant did not provide any additional documentation with her application for review except a copy of her passport. The Tribunal wrote to the Applicant first on 2^nd November and then on

   
   

   24 November 2006. The Tribunal invited the Applicant to attend a hearing at 11:00am on 21^st December. The Applicant attended that hearing and gave evidence with the assistance of a Mandarin interpreter.  She provided a full copy of her Chinese passport. 

3. A copy of the Tribunal decision appears at pages 72 through to 81 of the Court Book. The Tribunal set out the Applicant's claims and evidence and they appear at pages 75 through to 79 of the Court Book.  The Applicant's claim is that she has a fear of persecution if she were to return to China because she is a Falun Gong practitioner.  She said she taught herself Falun Gong and practised privately at home in China.  She told the Tribunal that she was never troubled by the authorities in China because she practised in private. 

4. The Applicant told the Tribunal that she had obtained her passport for travel purposes and when she arrived she saw people practising Falun Gong openly in the streets. She decided that she wished to apply to stay in Australia and she told the Tribunal that she had practised Falun Gong in Australia until about August or September 2006.

The Tribunal’s findings and reasons

1. The Tribunal's findings and reasons are set out on pages 79 and 80 of the Court Book.  The Tribunal accepted on the basis of the Applicant's passport, the Applicant is a citizen of the People's Republic of China.  The Tribunal also noted that the Applicant had never been suspected of being a Falun Gong adherent in China and had never been harmed or harassed at all for that reason.  The Tribunal went on to say at page 80:

   The Tribunal gives weight to the applicant's evidence at the hearing about coming to Australia, not to seek protection but for the sake of travel.  The Tribunal gives weight to the applicant's claim at the hearing about her having decided to stay in Australia only after seeing Falun Gong practitioners exercising here.  The Tribunal does not accept that the applicant was a Falun Gong practitioner or had any interest in Falun Gong before coming to Australia or even until some time after coming to Australia. 

2. The Tribunal did not form a positive view of the Applicant's credibility and disregarded her claims about her activities in Australia under the provisions of sub-s.91R(3) of the Migration Act. The Tribunal was not satisfied that the Applicant faced a real chance of Convention related prosecution in China and found her claimed fear of persecution was not well-founded and affirmed the decision not to grant her a Protection (Class XA) visa.

The application for judicial review

1. The Applicant commenced proceedings for judicial review by means of an application and an affidavit filed on 7^th February 2007. In her application she claimed that the Tribunal disregarded the fact that her protection visa application was refused but she is a genuine Falun Gong practitioner. She said that the Tribunal did not consider the information that she provided and did not make the decision followed by the whole facts of the application. 

2. The Applicant provided a written submission to the Court in which she set out that she felt that the Tribunal decision was very unfair.  She stated that she was a genuine Falun Gong practitioner and set out how in China she knew little about Falun Gong because people dared not talk about it in public but when she arrived in Australia she kept practising Falun Gong and has undertaken that practice in Australia.

3. She requests a chance for legal residence in Australia so that she can practise and promote Falun Gong in this country. The Applicant told the Court that she just wanted to stay in Australia legally and did not understand why the Tribunal rejected her application. She re-iterated that she was a genuine Falun Gong practitioner and she wished to continue her practice in this country.  In China she said she was unable to practise in public.  She wishes to have the opportunity to continue her study of Falun Gong. 

4. I explained to the Applicant that for an order quashing the Tribunal decision must find that the Tribunal committed a jurisdictional error.  This has been set out by Gyles J in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3] where his Honour said:

   Insofar as the Federal Magistrates Court is concerned, it has no role to second guess the Tribunal on matters of fact or judgment.  The Federal Magistrate's Court can only correct the Tribunal if jurisdictional error is revealed.

5. For the Respondent Minister, Mr O'Donnell of counsel submitted that there is no jurisdictional error.  In oral submission he told the Court that the Applicant's submission was in fact no more than an attempt at merits review, a challenge to the Tribunal's factual decision and that the decision on the facts was a matter reserved by law at the Tribunal.  In his written submissions he put that assessment of the credibility of testimony based on internal consistency, inherent plausibility and consistency with independent country information was clearly within the Tribunal's decision. 

6. He referred the Court to Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] and also submitted there is no error of law let alone jurisdictional error in simply making a wrong finding of fact. He referred to Abebe v Commonwealth (1999) 197 CLR 510 at [137]. As to the Applicant's three grounds, he submitted that the first appeared to be a request for merits review that the second ground was not particularised and it was difficult to determine exactly what the third ground meant.

7. He submitted that there was no error in the way the Tribunal dealt with s.91R of the Migration Act in relation to the Applicant's conduct in Australia because the Tribunal put the Applicant on notice of that issue at the hearing. See Court Book pages 78 and 79. Thus he submits, and I believe correctly, that there was no error of the sort identified in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63 at [43] to [44].

8. In my view the Applicant's claim is solely related to a challenge to the Tribunal's actual finding. The Tribunal was not satisfied with the Applicant's evidence and decided the case on the Applicant's evidence. There is no breach of s.424A of the Migration Act. The Tribunal did not breach s.425. It invited the Applicant to attend the hearing and provided an interpreter. The Applicant attended and gave oral evidence. The Tribunal put to the Applicant its concerns about the strength of the Applicant's case and gave the Applicant the opportunity to reply.

9. In my view no jurisdictional error has been revealed. I am mindful of the fact that the Applicant is not legally represented. My reading of the decision of the supporting material does not indicate any arguable case of a jurisdictional error. In my view there is no jurisdictional error and the decision is a privative clause decision as defined by s.474 of the Migration Act. Consequently the decision being a privative clause decision is final and conclusive and the Court cannot grant relief by way of declaration, certiorari or mandamus. The application will be dismissed with costs.

10. In this case the Applicant has been unsuccessful in her claim and it is, in my view, an appropriate matter for an order for costs.  The amount sought is $4,000.00 which is well within the scale provided by the Federal Magistrate Court Rules.  It appears to me to be a suitable figure and I make the following orders.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  10 May 2007