SZKFQ v Minister for Immigration

Case •

[2007] FMCA 795

•

15 May 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKFQ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 795
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of China claiming fear of persecution arising from her mother's opposition to the Chinese government's persecution of Falun gong practitioners – credibility – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 424A, 424A(3)(b), 425, 474(1), 474(2)
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA [2006] FCA 627
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205
Applicant: SZKFQ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 534 of 2007
Judgment of: Scarlett FM
Hearing date: 15 May 2007
Date of Last Submission: 15 May 2007
Delivered at: Sydney
Delivered on: 15 May 2007

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondents: Ms Wong
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the first respondent’s costs fixed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 534 of 2007

SZKFQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. This is an application to review a decision of the Refugee Review Tribunal.  The Tribunal handed down its decision on 18th 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.

  2. In her application filed on 16th February this year the applicant asks for the following orders:  (1) a writ of certiorari quashing the decision; (2)  a writ of mandamus, compelling the Tribunal to rehear and redetermine the matter according to law.  The applicant also seeks an order for costs, although I note that she is not legally represented and does not appear to have been represented by a lawyer at any time.

  3. I should point out that, if the Court were persuaded to make an order in the nature of mandamus, it would not be the case that the Court would require the Tribunal to rehear the applicant's application.  It is my understanding that a writ of mandamus should require the Tribunal to redetermine the applicant's application according to law.  In any event, as I explained to the applicant this morning, the Court would only set aside the Tribunal decision if the Court were to find that the Tribunal's decision involved jurisdictional error.  It is well-established that the role of the Federal Magistrates Court in conducting judicial review is not to second-guess the Tribunal on matters of fact.  The Court can only correct the Tribunal if jurisdictional error is revealed (see SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]).

  4. The background to this matter is that the applicant is a citizen of China.  She arrived in Australia on 4th July 2006 and applied for a protection (Class XA) visa on 14th August in that year.  Her application was refused on 26th August 2006.  One month later, on 26th September, the applicant applied to the Refugee Review Tribunal for a review of the decision of the delegate.  The application for review was not accompanied by any document, except for a copy of the applicant's passport, issued by the Ministry of Foreign Affairs of the People's Republic of China. 

  5. The Tribunal wrote to the applicant on 27th September 2006, acknowledging her application, and wrote again to the applicant, on 17th October, advising her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone.  The Tribunal invited the applicant to attend a hearing on 17th November 2006. 

  6. The applicant attended the hearing and gave evidence, with the assistance of an interpreter in the Cantonese language.  She produced her passport, which was photocopied in full by a Tribunal officer. 

  7. The Tribunal decision record, or a copy of it, can be found at pages 72‑75 of the Court Book.  The Tribunal's findings and reasons appear at pages 72-75. 

  8. The Tribunal noted the applicant's claim that the applicant's mother was the former vice-president of the Guangdong People's Political Consultative Conference and that the applicant's mother had been questioning the government's position on the Falun Gong movement on many occasions since 1999.  The applicant said that her mother was targeted by the government from 2003 onwards, when her opinion was recorded in a newspaper published in Taiwan.  It was alleged in 2004 that the applicant's mother had taken bribes.  The allegations also said that some of that money had been transferred to the applicant's hairdressing business.  The applicant feared further action by the Chinese government, so she left China for Australia.  The applicant has a daughter who is also in Australia, on a student visa. 

  9. The Tribunal sets out, on pages 65-71 of the Court Book, a detailed summary of the applicant's evidence to the Tribunal and the applicant's response to a number of questions asked by the Tribunal member. 


    I note that there is a factual error in the Tribunal decision, in that, at page 65, in the final paragraph, a reference is made to an interpreter in the Mandarin language.  It is clear from the RRT hearing record, a photocopy of which appears at page 49 of the Court Book, that the interpreter was in fact an interpreter in the Cantonese language.  In my view, nothing turns on that error.

  10. The Tribunal asked the applicant a number of questions about the involvement of the applicant's mother in the Guangdong People's Political Consultative Conference, and about the mother's actions and the harm suffered by both the mother and also by the applicant herself.  The Tribunal also referred to independent evidence about the Falun Gong movement, about the treatment given to Falun Gong practitioners in China and about the Guangdong People's Political Consultative Conference.  A summary of the independent evidence relied on by the Tribunal can be found at pages 71 and 72 of the Court Book. 

  11. The Tribunal relied on the applicant's Chinese passport to find that the applicant was a national of China.  However, the Tribunal was not satisfied about the credibility of the applicant's evidence.  The Tribunal referred, on several occasions, to the fact that the applicant's evidence was "extremely vague and contradictory", at page 72, that the evidence was "vague and lacking in detail", on page 73, and the Tribunal, in fact, came to the conclusion that the vague manner in which the applicant gave her evidence was because the applicant was not speaking from actual experience.  The Tribunal was particularly critical of the applicant's lack of knowledge of the Guangdong People's Political Consultative Conference, and her mother's role in it.  The Tribunal also noted, at page 73 of the Court Book, that significant aspects of the applicant's evidence were contradicted by information from sources consulted by the Tribunal.

  12. The Tribunal accepted that independent evidence indicated that Chinese authorities did persecute Falun Gong practitioners in a variety of ways but the Tribunal, on the independent evidence did not find it plausible that the Chinese authorities would have attempted to "frame" the applicant and her mother, rather than subjecting them to any of the normal forms of harm or harassment, such as arrest, detention, surveillance or beatings and intimidation metered out to other Falun Gong practitioners or Falun Gong supporters.

  13. The Tribunal concluded that the applicant was not a credible witness and that the applicant's claims that her mother had a political opinion in support of Falun Gong were not true.  Based on those fundamental findings about the applicant's account, the Tribunal did not accept that the applicant or her mother had been interviewed or persecuted, or that the applicant would be persecuted if she were to return to China. 


    In summary, the Tribunal found that the applicant did not have a well‑founded fear of persecution for a Convention reason and did not satisfy the criterion set out in s.36(2) of the Migration Act for a protection visa.

  14. The applicant, in her application, sets out one ground for relief. 
    She claims that the Refugee Review Tribunal breached s.424A of the Migration Act by not inviting the applicant to comment on particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review. In particular, the applicant claimed that the Tribunal dismissed her claims because she was unable to explain what the Guangdong People's Political Consultative Conference - an organisation the applicant claims her mother was former vice-president of - was or what it did.
    The applicant says the Tribunal did not invite her to explain why she was not familiar with the nature of the GPPCC. 

  15. The applicant did not file any amended application or any written submissions.  She relies on no other ground of review.  At the hearing, I invited the applicant to expand on her application and advise the Court of particulars of that or any other jurisdictional error.  The applicant addressed the factual matters, claiming that her mother's work with the GPPCC was confidential and she did not know what her mother's work involved.  The applicant said that her mother was opposed to the Chinese government's suppression of the Falun Gong movement and she spoke out in support of Falun Gong practitioners.  She said that her mother suffered persecution from the Chinese authorities because of her opposition to the government's policy, and she also said that her husband became scared that the authorities would persecute the applicant and her family, and, as a result, he divorced her. 
    The applicant said that she then came to Australia with her daughter and expressed a wish that the Australian government could give her political asylum.

  16. Unfortunately, the grounds contained in the applicant's oral submission do not reveal any jurisdictional error and are merely challenges to the Tribunal's factual finding.  A challenge to the factual findings of the Tribunal is no more than what is referred to as a "merits review", and merits review is not available on judicial review of the finding of the Refugee Review Tribunal. 

  17. As to the claim in the application that the Tribunal breached s.424A of the Migration Act, there is no evidence of any breach. As counsel for the first respondent minister, Ms Wong, submitted, the Tribunal only took into account independent country information and evidence provided by the applicant at hearing. That information is not subject to the requirement of s.242A of the Migration Act. The Tribunal decision does not indicate any breach of s.424A.

  18. The applicant's own evidence to the Tribunal is information provided by the applicant during her hearing, which falls within the exception in s.424A(3)(b) of the Migration Act. It is well-established that independent country information, upon which in this case the Tribunal also relied, falls within the exception in s.424(3)(a) of the Migration Act.

  19. As counsel for the first respondent minister submitted, there is no obligation on the Refugee Review Tribunal to provide the applicant with an opportunity to comment upon either of those two categories of information, and the ground, therefore, must fail (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 and also SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627 at [35]).

  20. I am mindful of the fact that the applicant is not legally represented. She has not been legally represented at any stage in the proceedings, although she did indicate that she wished to take part in the Tribunal's panel advice scheme, and was referred to Ms Geraldine Hoeben, barrister, for advice as part of that scheme. Nevertheless, the applicant is unrepresented and I have read through the Tribunal decision and supporting material, independently of the applicant's application and the respondents' submissions, in order to ascertain whether any arguable case of jurisdictional error can be made out. It is clear that the Tribunal complied in its obligation under s.425 to invite the applicant to attend a hearing. The Tribunal invited the applicant in plenty of time. The letter of invitation under s.425 is dated 17th October and it invited her to attend a hearing a month later, to the day, on
    17th November 2006. 

  21. The hearing, in my view, gave the applicant a real opportunity to present evidence and argue her case.  She was not represented by a migration agent but she was provided with the assistance of a Cantonese interpreter.  The applicant was able to give evidence and the Tribunal asked her a number of questions about her case.  The Tribunal formed the view that the applicant's evidence was not credible, due to its vague and contradictory nature. 

  22. Credibility is a factual finding.  It is very much within the province of the administrative decision-maker to form a view about the credibility or otherwise of a party's evidence.  So long as there is evidence upon which such a finding can be made, then a Court conducting judicial review cannot, and will not, interfere.  In my view, there is ample evidence - based on the vague and contradictory nature of the applicant's evidence and the way in which that evidence varied from independent country information - that would allow the Tribunal to have formed a view that the applicant was not a credible witness.

  23. Having made that finding, the Tribunal was then at liberty not to be satisfied that the applicant's evidence showed that she was a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol.  It is certainly not the function of the Tribunal to produce evidence to rebut an applicant's claims.  It is quite clear that it is up to an applicant to provide evidence sufficient to satisfy the Tribunal that the applicant is entitled to a visa.

  24. The Tribunal was not satisfied that the applicant's evidence was credible and, therefore, was not satisfied that the applicant's evidence showed that she was a person to whom Australia has protection obligations under the Convention.

  25. There is no jurisdictional error. Because no jurisdictional error has been made out, the Tribunal's decision is a privative-clause decision, as defined by s.474(2) of the Migration Act. Under s.474(1), the Tribunal's decision, therefore, is final and conclusive and is not subject to the orders in the nature of certiorari or mandamus that the applicant seeks. The application will be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 28 May 2007

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Cases Citing This Decision

1

SZKFQ v Minister for Immigration and Citizenship [2007] FCA 1432