SZKED v Minister for Immigration - [2007] FMCA 785

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKED v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 785

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision 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 result of his practice of Falun Gong – credibility – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss. 424A, 424, 424(3)(b), 425, 474(2)

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 24
Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27.

Applicant:

SZKED

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 413 of 2007

Judgment of:

Scarlett FM

Hearing date:

9 May 2007

Date of last submission:

9 May 2007

Delivered at:

Sydney

Delivered on:

9 May 2007

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the first respondent's costs fixed in the sum of $2,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 413 of 2007

SZKED

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on the

6th December 2006 and handed down on the 4th January 2007.

The Tribunal affirmed the 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. In particular, he asks the Court to issue a writ of certiorari to quash the Tribunal decision and to issue a writ of mandamus to compel the Tribunal to reconsider the application according to law.
The background to this matter is that the applicant is a citizen of the People's Republic of China. He arrived in Australia on the

13th June 2004 and applied for a protection (Class XA) visa on the

31st August in that year. On the 10th September 2004, a delegate of the Minister refused his application. The applicant then applied to the Refugee Review Tribunal for a review of that decision. The Tribunal affirmed the delegate's decision on the 26th November 2004.
The applicant then sought judicial review of that decision from the Federal Magistrates Court. On the 27th September 2006, the Court set aside the Tribunal decision and remitted the application to the Refugee Review Tribunal for determination. The Tribunal then wrote to the applicant on the 17th October 2006 inviting him to provide any documents or written arguments that he had not already provided to the Tribunal.
On the 20th October 2006, the Tribunal invited the applicant to attend a hearing. The letter told the applicant that the Tribunal had considered the material before it in relation to his application but it was unable to make a decision in his favour on that information alone.

The letter invited the applicant to attend a hearing of the Tribunal on the 29th November 2006 and said that at the hearing the applicant would be able to give oral evidence and present arguments in support of his claims. The letter also informed the applicant that he could ask the Tribunal to obtain oral evidence from some other persons. The letter also asked the applicant to send the Tribunal any new documents or written arguments that he wanted the Tribunal to consider.
The applicant provided a copy of his Chinese passport to the Tribunal. He also completed a response to hearing invitation which said that he wanted to attend the hearing and would need an interpreter in the Mandarin language. The applicant attended the hearing on the 29th November 2006 and gave evidence with the assistance of an interpreter. At that hearing he told the Tribunal that he feared returning to China because he had practiced Falun Gong in China. He said that he had begun practising Falun Gong in China back in 1996. He said that he practices Falun Gong in Australia about once a fortnight.

The Tribunal asked him a number of questions about his practice and knowledge of Falun Gong.
The Tribunal handed down its decision on the 4th January 2007.

A copy of the Tribunal decision record can be found at pages 69 to 79 of the Court Book. The Tribunal set out on pages 72 through to 77 a detailed summary of the applicant's evidence to the Tribunal.

The Tribunal's findings and reasons appear on pages 77 and 78.
The Tribunal accepted that the applicant was a Chinese national and assessed his claims against China as his country of nationality.

The Tribunal noted that the applicant claimed that he began practising Falun Gong in 1996 and he practised regularly until his departure in 2004. The Tribunal noted the applicant's claims that he had fled China because other Falun Gong practitioners had been arrested and he feared that they would tell the authorities that he too had been a practitioner.
The Tribunal was not satisfied that the applicant was a Falun Gong practitioner, certainly not to the extent which he claimed. The Tribunal noted that the applicant had an extremely limited knowledge of aspects of Falun Gong teaching and was not able to perform two of the five exercises which he claimed to have been practicing in China and Australia. The Tribunal did not consider that the applicant had explained why he practiced only two of the five exercises despite the claimed length of his practise of Falun Gong.
The Tribunal went on to say:
“In light of the fact that the applicant could not perform even two of the five Falun Gong exercises and the other deficiencies in the applicant's evidence the Tribunal does not accept that the applicant was a Falun Gong practitioner in China or Australia.”[1]
[1] At Court Book page 78
The Tribunal did not accept that the applicant had suffered serious harm in China as a result of being a Falun Gong practitioner and did not accept that if the applicant were to return to China there was a real chance that he would be persecuted for reasons of his real or imputed religious beliefs or his membership of any particular social group for the purposes of the Refugee’s Convention.
The Tribunal also noted[2] that the applicant had spent a short period of time in both Indonesia and Vanuatu and accepted that he may not have wished to remain in those countries due to perceived racism and other difficulties. The Tribunal went on to say that it was required to assist the applicant against his country of nationality, namely China. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
[2] At Court Book page 78
The applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit on the 8th February 2007.

He filed an amended application on the 30th April 2007. In his original application the applicant set out four grounds of review:
1)A failure to carry out the Tribunal's statutory duty by failing to comply with s.424A of the Migration Act 1958 (Cth) (“the Act”).
2)Referring to irrelevant information for the consideration of his application.
3)Refusing his application based on wrong information and not evidence.
4)Having bias against him and not considering his application according to the Act.
In the applicant's amended application filed on the 30th April the applicant set out three grounds, two of which were similar to grounds in his original application:
1)He claimed that the Tribunal referred to irrelevant independent information in consideration of his application.
2)He claimed that the Tribunal refused his application based on an assumption by the Tribunal member and not evidence.
3)The Tribunal failed to consider his application for a protection visa in accordance with s.424A of the Act.
He said:
“I was not given an opportunity to comment upon the reason for affirming the decision. Please refer to the details of the particulars.”
The particulars referred to are a one and a half page submission on s.424A of the Act referring to the decisions of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 24 and the decision of the Federal Court in Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27.
That submission referring to those two cases is one familiar to Federal Magistrates, as it appears regularly, complete with spelling errors, in applications before this Court.
The quotations from the decisions in SAAP and Al Shamry (supra) are correct but the Court must ascertain whether those two authorities in fact support the applicant's case. The applicant made an oral submission in which he claimed that the Tribunal was prejudiced against him and made its decision in accordance with assumptions, and did not follow the provisions of s.424A of the Act, by giving to him in writing a description of the reasons why it proposed to affirm the delegate's decision and giving him an opportunity to comment.
The applicant was not able to give any reason as to why the Tribunal should be biased or prejudiced against him, except for the fact that the decision was not in his favour and he claimed that the Tribunal based its decision on the Tribunal's assumptions rather than the evidence. The particular assumption to which the applicant takes exception is an assumption by the Tribunal that an experienced Falun Gong practitioner would know how to perform the five exercises.
The Minister's written submissions were prepared before the Minister's lawyers received the amended application. As such, they refer to the grounds in the applicant's original application. Ms Palmer for the Minister addressed the Court orally about matters in the applicant's amended application not covered in her written submission. It is the Minister's contention that there is no failure by the Tribunal to follow s.424 of the Act because the applicant re-published his claims to the Tribunal and the exception under s.424A(3)(b) of the Act applies.
In addition, the evidence given by the applicant at the hearing also fell within the exception in s.424A (3)(b) and there was no requirement to provide the applicant with a letter under s.424A of the Act.

The Minister also submits that the applicant's grounds asserting that the Tribunal referred to irrelevant information and refused the application based on wrong information are not particularised and that the applicant was unsuccessful before the Tribunal because the Tribunal did not reach the requisite level of satisfaction on the material before it to find the applicant met the necessary visa criteria.
As to the allegation of bias, it is submitted that the applicant made no attempt to comply with the requirement that the serious allegation should be firmly and distinctly made and clearly proved that there is an absence of any evidence of bias.
In oral submissions Ms Palmer put to the Court that the claim that the Tribunal relied on an assumption rather than on evidence is not a proper ground, and the Tribunal refused the application because it did not believe the applicant's evidence. The applicant's evidence did not allow the Tribunal to reach the required level of satisfaction that the applicant was entitled to a protection visa.
Dealing with those grounds in order I am satisfied that there is no breach of s.424A of the Act. Under s.424A(3)(b) of the Act, evidence provided by the applicant to the Tribunal for the purpose of the application for review is excluded from the obligations of the Tribunal under the Act. It is clear that the Tribunal was not satisfied on the applicant's evidence that he was a Falun Gong practitioner. This is a factual finding which is within the domain of the administrative decision maker of the Refugee Review Tribunal. There was evidence upon which the Tribunal could make the finding that it did, to the effect that the applicant had very little knowledge of Falun Gong.
There is no evidence of irrelevant information upon which the Tribunal relied and it is hardly irrelevant that the applicant could only perform two of the five Falun Gong exercises and he could not even perform those two very well. There is no evidence that the Tribunal relied on wrong information even if that were a ground for a finding of jurisdictional error. There is no evidence of bias. Bias is a serious allegation alleging as it does personal fault on the part of the decision maker. It must be clearly alleged and proved. There is just no evidence of bias whatsoever.
The claim that the Tribunal based its decision on an assumption by the Tribunal member rather than evidence has not been made out.

The applicant characterised the Tribunal's assumption as an assumption that an experienced Falun Gong practitioner should be able to do more than two of the five exercises. With respect, that appears to me to be more than an assumption but a logical inference drawn from the evidence. The fact is that none of the applicant's grounds have been made out either in his original application or his amended application.
The Tribunal was not satisfied with the applicant's evidence that he was a Falun Gong practitioner and there was ample ground for that finding. I am mindful of the fact that the applicant is not legally represented. My own reading of the Tribunal decision and the supporting documentation does not indicate any other arguable ground for jurisdictional error. The Tribunal complied with s.425 in that it invited the applicant to attend a further hearing within plenty of time.
The applicant attended the hearing and gave evidence with the assistance of a Mandarin interpreter. Unfortunately for the applicant the Tribunal did not accept this evidence. That is a matter for the Tribunal and there is no jurisdictional error. As no jurisdictional error has been made out, I am satisfied that the Tribunal decision is a privative clause decision as defined by s.474(2) of the Act.

Because the decision is a privative clause decision it is not subject to orders in the nature of certiorari or mandamus. The application will be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $2,600.00. This is a proper matter for a costs order and the amount sought, namely $2,600.00, is well within the appropriate scale.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: