SZKFM v Minister for Immigration
[2007] FMCA 1680
•5 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1680 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – factual error on the face of the record not a jurisdictional error – adverse credibility finding – findings open to the Tribunal – no jurisdictional error – application dismissed. |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 SZFJU v Minister for Immigration and Citizenship [2007] FCA 1461 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZKFM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 514 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 5 October 2007 |
| Date of Last Submission: | 5 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms M Palmer |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 15 February 2007, as amended 18 May 2007, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 514 of 2007
| SZKFM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (“the Act”), filed on 15 February 2007 and amended on 18 May 2007, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal), signed on 4 January 2007 and handed down on 16 January 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 22 August 2006 and applied for a protection visa on 21 September 2006 (reproduced in the Court Book (“CB”) at CB 1 to CB 28, with annexures). On 14 October 2006, a delegate of the respondent Minister refused a protection visa to the applicant. On 17 November 2006, the applicant applied to the Tribunal for review of that decision.
Applicant’s claims to protection
The applicant’s claims to protection are set out in his unsigned statement attached to his application for a protection visa (CB 27 to CB 28). I note that the statement is “unsigned” but that there appears to be some marking at the bottom of the page on the copy before me. It is unclear. It may be that these are Chinese characters, but I take the statement to be that of the applicant.
The applicant claimed to be a Falun Gong practitioner who commenced practicing Falun Gong in 1996 after being introduced to Falun Gong by a work colleague. The applicant variously claimed that he had been detained by the Public Security Bureau (“PSB”) for a year and that he feared he would be detained if he were to return to China.
The Tribunal
The applicant appeared at a hearing before the Tribunal on 3 January 2007. The Tribunal’s account of what occurred at the hearing is reproduced in its decision record at CB 59 to CB 61. The applicant has not put before the Court any evidence, for example, by way of transcript, to challenge the Tribunal’s account of what occurred at the hearing.
I should just note that in its decision record the Tribunal refers to the relevant date on which the applicant appeared as “3 January 2006” (CB 59) but that this is plainly in error as the application was made subsequent to that date. I should also note at this stage that this is an error of fact but that it does not rise above an error of fact to the extent that it is one that reveals jurisdictional error on the part of the Tribunal (Abebe v Commonwealth of Australia (1999) 197 CLR 510 (“Abebe”)).
The Tribunal found that the applicant was not a witness of truth and that he had “fabricated his claims.” It found that the applicant was not a Falun Gong practitioner on the basis of his poor knowledge of the Falun Gong exercises and his failure in the three months since his arrival in Australia to make contact with Falun Gong groups or practitioners. The Tribunal found his explanations as to why he had not made such contact implausible. Further, the Tribunal found that the applicant was of no adverse interest to the authorities despite his claim that he had been detained for a year and that there was no evidence that he would suffer harm were he to return. I understood the Tribunal’s finding that there was no evidence in this regard to refer to the absence of evidence other than the applicant’s oral evidence to the Tribunal.
I should note that I make this distinction because Branson J recently observed (SZFJU v Minister for Immigration and Citizenship [2007] FCA 1461 at [10]) that tribunals often say things such as “no evidence” when what they really mean is there was not sufficient evidence. It is important that this message go back to the Tribunal as Her Honour’s point is a very clear one and one which is instructive for this Court.
In all, the Tribunal found that the applicant did not have a well-founded fear of persecution in China for a Refugees Convention reason and it therefore affirmed the delegate’s decision to refuse a protection visa to the applicant. The important issue to bear in mind is that the Tribunal’s reasoning leading to this conclusion arose out of the finding of a lack of credibility on the part of the applicant and the applicant’s fabrication of his claims.
Application to the Court
The application filed on 15 February 2007 puts forward three grounds:
“1. The decision involved an error of law.
2. The member of the Refugee Review Tribunal should not make decision that I am not a Falun Gong practitioner in China just because I had imperfect knowledge of one of the five exercises and no knowledge of one of exercises.
3. The Tribunal did not carefully consider my real situation and ignored my answers to the questions which the Tribunal member put to me.” [Errors in Original]
The amended application filed on 18 May 2007 puts forward the following grounds:
“I, [name], born on 23 December 1964 in Zhengzhou, Henan, China. I am a Falun Gong Practitioner, and I was ever detained by the Chinese Government. The Public Security Bureau will detain me again if I return to China now.
I started to practice Falun Gong in 1996. At that time, I worked in WUHUA TRADE COMPANY as a office clerk. I was not always busy. I liked to talk with my colleagues when I was free. Once upon a time, a friend introduced Falun Gong to me. He told me that his whole family was Falun Gong practitioner and they all are very healthy. I was often felt painful in my stomach. So. I started to practice Falun Gong. At first, I just wanted to try several times. I did not think that it was a good chance for me. I did not feel painful in my stomach after I practiced Falun Gong for a half of a year. I asked my family and friends practice Falun Gong. They were all getting benefit from practicing.
China started to suppress Falun Gong in July 1999. I was very scared as many Falun Gong practitioners were detained and fired by their employer. In March 2000 I was detained by Public Security Bureau for a year. I was tortured seriously during that year. I was released as I was forced to get rid of Falun Gong.
In July 2007 I got a chance to apply for a passport by accident. Any then my friend helped me apply for a Temporary Business Visitor visa to Australia. After I arrived in Australia, my friend told me that Australia is a democratic country. People, who do not want to go back to their original country because they will be prosecuted by their original country, can apply for protection visa. Thus, I want to submitted my own claims to be a refugee.” [Errors in Original]
Hearing before the Court
At the hearing before the Court the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Ms M Palmer appeared on behalf of the first respondent. Because the applicant was unrepresented, and having regard to what was set out in the amended application, I have also had regard to the original application. I also note that I have before me written submissions filed on 27 September 2007 on behalf of the first respondent.
The applicant was unable to assist the Court further. When I enquired of the applicant whether there was any other documentation that he wished to put before the Court, he answered that there was not anything else. After I explained to the applicant the differences between the role and function of the Tribunal and the role, function and power of the Court (I did this bearing in mind that the amended application in particular asserts no legal error on the part of the Tribunal but instead restates the applicant’s claims to protection), the applicant said that he had nothing to say.
The amended application
The amended application filed on 18 May 2007 is in similar terms to the statement attached to the applicant’s application for a protection visa. As I explained to the applicant, this is a recitation of his claims to protection and cannot, on its own, assist the applicant before the Court today. Simply, this is because the Court cannot engage in merits review of the Tribunal’s consideration and decision in relation to the applicant’s refugee claims.
To the extent that the amended application may be construed, even indirectly, as a complaint that the Tribunal made wrong findings of fact, this ground cannot succeed in revealing jurisdictional error on the part of the Tribunal. I should note that although I have noted one error of fact appearing on the face of the Tribunal’s record, this error is not an error such as to lead to an error in the Tribunal’s exercise of jurisdiction (Abebe).
The findings of fact made by the Tribunal, including, relevantly, a finding as to credibility, are a matter for the Tribunal as “the decision-maker par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407, per McHugh J at [67] (“Durairajasingham”)). Insofar as it may be said that the material comprising the amended application constitutes an application for merits review, such an application constitutes impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”).
Original application
The first ground in the original application asserts (without particulars) that the Tribunal’s decision involved an error of law. I cannot discern any such error in the Tribunal’s decision. The applicant made his claims, the Tribunal put the applicant on notice that on what was before it, it could not find favourably for the applicant. The Tribunal invited the applicant to a hearing to provide evidence and make submissions in support of his claims. The applicant attended and gave evidence.
From the only account of what occurred at the hearing that has been put before the Court, that is, the Tribunal’s account of what occurred at the hearing contained in its decision record, the applicant was given the opportunity to put forward his claims and to provide explanations. I should also just note that the from the Tribunal’s account of what occurred at the hearing, it is revealed that the Tribunal raised concerns about the applicant’s credibility with him during the course of the hearing.
After the applicant had been asked to give examples of the various relevant Falun Gong exercises, the Tribunal showed him examples of the relevant movements that, by comparison, revealed that the movements, “did not bear any resemblance to the fairly perfunctory movements [the applicant] had made” (CB 60.5). In addition, the Tribunal put to the applicant that it was hard to believe that he had been unable to find other Falun Gong practitioners, or other Falun Gong supporters, in Australia in the three months that he had been in this country (CB 60.6). Then (at CB 60.9), the Tribunal reports that it told the applicant that it had difficulty in believing his sincerity.
The applicant would have been left in no doubt at the hearing that the Tribunal did not accept his claims as being credible. Bearing in mind what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592, it is plain that the Tribunal raised with the applicant at the hearing the determinative issue in its consideration of the applicant’s matter and the issue determinative in its decision to affirm the delegate’s decision.
The Tribunal’s findings and reasons plainly arise from the matters discussed at the hearing and I cannot see that the applicant was denied any opportunity to put forward his claims and to explain those claims. Nor was the applicant denied an opportunity to address the Tribunal’s concerns about his claims.
Ground Two – Incorrect decision
Ground two in the original application asserts that the Tribunal should not have found that the applicant was not a Falun Gong practitioner in China on the basis alone that he had insufficient knowledge of Falun Gong exercises.
Again, as I have already stated, in relation to the finding of fact in this regard made by the Tribunal, this is a matter for the Tribunal as the “decision-maker par excellence.” Any plain reading of the Tribunal’s decision record reveals that it considered the applicant’s claims as put to it and that it found that the applicant was not a practitioner of Falun Gong. Such a finding was plainly open to the Tribunal for all the reasons that it gives, but also for the reason that the applicant was not able to demonstrate any of the very basic exercises central to the practice of Falun Gong, beyond his capacity, in relation to one exercise, to provide “fairly perfunctory” movements.
It was plainly open to the Tribunal to find that the applicant was not a Falun Gong practitioner when clearly he was unable to perform to the Tribunal’s satisfaction, movements which were central to the very practice to which he claimed to adhere. I should just note again, and emphasise, that there is an absence of any other evidence before the Court to show that the Tribunal failed to consider any other matters relevantly put to it by the applicant during the course of the hearing. Not only in relation to the physical aspects of the practice of Falun Gong, but indeed, in relation to any other matter. In all, in relation to this unparticularised complaint, the Tribunal’s findings in relation to this claim, on the basis of the evidence before it, were plainly open to it.
Ground Three – Failure to consider the applicant’s claims
The third ground in the original application asserts that the Tribunal failed to consider carefully the applicant’s claims and ignored the answers the applicant gave to its questions. Again, for all the reasons to which I have already referred, this finding was clearly open to the Tribunal. It was open to the Tribunal to reject the applicant’s explanations. A plain reading of the Tribunal’s decision record (the only evidence of what occurred at the hearing) reveals that the Tribunal considered each of the applicant’s claims as put in the statement attached to his application for a protection visa and as put by the applicant himself at the hearing before the Tribunal.
If the applicant intends to assert by what is set out in ground three that the Tribunal ignored his answers to its questions, it is plain that the Tribunal did not ignore the applicant’s answers but that it did not accept them as adequate explanations. It may be, however, that the applicant puts forward this complaint and uses the word “ignored” to say that the Tribunal did not accept his answers. The simple answer to such complaint is that there is no obligation on the Tribunal to uncritically accept what the applicant has put to it (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437). It is the function of the Tribunal to examine and consider what has been put to it either by way of claim or explanations. If the Tribunal, in making its findings of fact, does not accept such claims, no error of law is revealed merely by the Tribunal making such a finding. So long as the finding is open to it on the material before it, and in this case, that was the situation, and the Tribunal gave reasons for its findings, there is no error of law.
In all, I cannot discern jurisdictional error in what the Tribunal has done in this matter. The application is therefore dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 12 October 2007
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