SZKGG v Minister for Immigration and Anor (No.2)
[2007] FMCA 2148
•20 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGG v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 2148 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – the only evidence the Tribunal is required to refer to in its decision is that on which it bases findings of fact – Court cannot reconsider the merits of the application to the Tribunal – Tribunal is not required to have found a negative case against the applicant in order for it to affirm the decision of the delegate. |
| Migration Act 1958, ss.430, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 |
| Applicant: | SZKGG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 626 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 20 December 2007 |
| Date of Last Submission: | 20 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 626 of 2007
| SZKGG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was involved in the pro-democracy movement. He alleges that while in China he “actively demanded” that the government repudiate actions and reverse orders in response to the pro-democracy movement and that this subsequently led to him being investigated. The applicant arrived in Australia on 28 February 1998 on a student visa.
The applicant claims to fear persecution in China because of his political opinions.
Some years after his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate by a decision which purports to be dated 15 July 2005 and which the Minister’s written submissions reveal ought to have been correctly dated 15 August 2005. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and applied to this Court for judicial review of the Tribunal’s decision.
This is the second decision in this Court relating to the applicant. A previous decision delivered on 21 May 2007 was the subject of a successful appeal to the Federal Court which remitted the matter to be determined according to law.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The delegate described the applicant in the following terms:
… the applicant is a 44-year-old married male, Chinese national from Tianjin City in the People's Republic of China (PRC), who arrived in Australia on 28 February 1998 travelling on a PRC passport … issued in his name, with an Australian Student (Sub class 560) visa issued in his name on 11 February 1998 and valid until 30 July 2001. The applicant lodged his Protection visa application on 11 August 2005, following his detention at the Villawood Immigration Detention Centre by request on 22 July 2005. (Court Book (“CB”) page 30)
The facts alleged in support of the applicant’s claim for a protection visa are set out on pp.5 – 10 of the Tribunal’s decision (CB 70 – 75). Relevantly, they are in summary:
a)the applicant was persecuted during the pro-democracy movement in Tianjin in 1989 after the Tiananmen Square massacre;
b)he “actively demanded” that the government repudiate actions and reverse orders in response to the pro-democracy movement. As a result he was constantly investigated. Police detained him in a police station from time to time and beat him, demanding that he admit that what he was doing was anti-Communist. He was first detained in October 1988. The last time he was detained was in 1992, six years before he left China, however, he was never charged or convicted;
c)some of the other members of the applicant’s “league” stayed in China and were arrested while others escaped to other countries;
d)the applicant was unable to work in China after 1987 due to the police crackdown on the pro-democracy movement. His factory registration was cancelled six years later;
e)the applicant formed the “Chinese Tianjin Democracy Group” in 1986 with four other people and remained involved with it until February 1998 when he came to Australia. Since departing China the applicant has had no involvement in the pro-democracy movement;
f)the applicant variously claimed that he did not seek a protection visa when he first arrived in Australia because he did not know much about immigration law but later said it was because he did not want to create more trouble for his family;
g)his pro-democracy friends helped him obtain a passport and student visa nearly nine years after the Tiananmen massacre. Friends and family who helped the applicant escape faced harassment in China; and
h)the applicant claimed that he was able to depart China under his own name because of corruption.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was not so much characterised by findings of fact as by rejection of the evidence proffered by the applicant in support of his claim to fear persecution.
The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant was involved with a pro-democracy group in Tianjin, noting that:
i)his evidence of this claim was confused, inconsistent and ultimately very unimpressive;
ii)the applicant’s own evidence that he has had no involvement with politics since arriving in Australia was unimpressive and failed to demonstrate any ongoing commitment to the pro-democracy movement; and
iii)the applicant failed to provide any evidence to support his claim of being detained or otherwise subject to a crackdown in 1987 or 1988;
b)his claim that his work registration was cancelled some six years later was fanciful;
c)the applicant failed to provide a plausible explanation for why he remained uncharged, untried and unconvicted despite his claim to have attracted serious disapproval from the authorities;
d)the applicant was able to depart China legally;
e)the applicant provided no consistent or otherwise plausible explanation for delaying his application for protection in Australia; and consequently
f)the Tribunal found that the applicant was of no relevant concern to Chinese authorities either at the time of the Tribunal hearing or in the reasonably foreseeable future.
Proceedings in this Court
The relevant grounds of the application filed in the Court were pleaded in the following terms:
(a) The decision involved an important exercise of the power conferred Migration Act and Regulations.
(b) The respondent did not carefully consider the information which is in favor [sic] of the applicant.
(c) There was no evidence or the other materials to justify the making of the decision.
(e) The decision made by the Tribunal is illogical.
At the hearing today the applicant also submitted that the Tribunal’s decision was unreasonable and unfair.
Dealing with each of these grounds in turn:
The decision involved an exercise of power
The first purported ground of review does not disclose any basis upon which the Tribunal’s decision might be reviewed. It is a reference to the role of the Tribunal and no jurisdictional error is disclosed in connection with it.
The Tribunal did not consider information favourable to the applicant
The second ground of review raises two possible issues. The first being whether all the information in question was considered and, secondly, whether it was considered carefully. As to the first of these issues, the applicant does not identify what, if any, information was not considered by the Tribunal. A consideration of the Tribunal’s decision record reveals that it did consider the material which had been placed before it and to that extent that element of the ground is not made out on the facts.
This part of the second ground might also be saying that some information supplied by the applicant is not referred to by the Tribunal in that section of its decision under the heading “Findings and Reasons”. If that is so, then that only reflects the fact that such information was not relied upon by the Tribunal when reaching its decision. Although the Tribunal is obliged to include certain material in its decision record, s.430(1)(d) of the Act only requires the Tribunal to refer to evidence or other material on which its findings of fact were based. As a result, if evidence or material is not referred to it must be concluded that it did not form the basis of any findings.
A failure to consider material can only be of significance if it affected the exercise by the Tribunal of its jurisdiction. There is nothing to indicate in this matter that anything of that sort occurred here. Consequently, no jurisdictional error is demonstrated in relation to the first element of this asserted ground of review.
As to the second point, whether the information was considered carefully, this is an invitation to the Court to review the Tribunal’s findings on the merits of the applicant’s claim. The Court cannot do this. The Tribunal’s role is to make findings of fact as appropriate and to make a decision on the merits of the applicant’s application for a protection visa.
The Court’s role is to ensure that the Tribunal has applied the law in its procedures and the expression of its decision. The Court is concerned with a fair process in the Tribunal, not with a fair outcome at the Tribunal. In this case, the Tribunal’s finding was open to it on the evidence before it and no jurisdictional error is demonstrated in respect of the second element of this asserted ground of review.
No evidence to justify decision
This asserted ground of review misconceives the Tribunal’s role. The Tribunal is not required to have found that a negative case exists against the applicant in order for it to affirm the decision of the delegate. The role of the Tribunal is to determine whether such evidence as is before it satisfies it that an applicant meets the criteria for a protection visa. Consequently, although there is no onus of proof on an applicant, as that term is understood in the context of litigation, nevertheless it is for the applicant to put before the Tribunal the information and arguments which will lead the Tribunal to the necessary level of satisfaction.
If the information placed before the Tribunal fails to satisfy it that the applicant meets the criteria for a protection visa, then the application must be dismissed, no negative case being required. Consequently, this ground does not disclose jurisdictional error on the part of the Tribunal.
Tribunal’s decision illogical
A review of the Tribunal’s decision record reveals that this allegation is not made out on the facts. The Tribunal set out the material which was before it, analysed that material and arrived at a conclusion which was open to it. The Tribunal’s decision was logical and rational and no jurisdictional error is disclosed on account of this asserted ground of review.
Decision unreasonable and unfair
An allegation that a Tribunal’s decision is unreasonable can be, and I conclude is, in the current circumstances, no more than an argument that an applicant strongly disagrees with the Tribunal’s decision. It cannot be the case that unreasonableness in the sense discussed in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 has any application in the context of this matter. In reality, this asserted ground of review is another invitation to the Court to review the Tribunal’s finding on the merits of the application. For the reasons already expressed, the Court cannot do this and no jurisdictional error has been disclosed by this argument raised today.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 14 January 2008
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