SZKHZ v Minister for Immigration
[2007] FMCA 2096
•7 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2096 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Migration Act 1958 (Cth) s.474 |
| SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 |
| Applicant: | SZKHZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 784 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 7 December 2007 |
| Date of last submission: | 7 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2007 |
REPRESENTATION
| Applicant appeared in person with Mandarin interpreter |
| Solicitors for the Respondent: | Mr P. Reynolds, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 784 of 2007
| SZKHZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
| REFUGEE REVIEW TRIBUNAL |
Respondent
REASONS FOR JUDGMENT
This is an application by the applicant for judicial review of a decision of the Refugee Review Tribunal dated 11 January 2007. The applicant appeared before this Court unrepresented although had the assistance of an interpreter.
An application was filed in the name of the applicant on 7 March 2007 and an amended application was filed on 21 May 2007 pursuant to directions made by me on 22 March 2007.
At the outset of the hearing the applicant was asked to confirm to this Court which of the applications he relied upon as disclosing his grounds of review. The applicant told the Court that he had no idea what was in either application; he did not rely upon either application; that he had merely signed blank documents at the request of his migration agent; and, that for those reasons he did not seek to rely on either document.
The applicant gave sworn evidence about those matters in which he stated that the name of his agent was Mr Lu Song Tao. He said that when he had asked for the documents to be read to him Mr Lu Song Tao told him he was too busy and that if he wished to know the contents he could obtain a level three interpreter to assist him. The applicant stated he did not give instructions to file any document, although he did seek advice as to what he could do about the Tribunal decision that had affirmed the decision under review.
The grounds were read to the applicant and he said he did not know whether or not he relied upon them. In the course of giving evidence he said that he did wish to have the Tribunal’s decision reviewed by this Court.
The hearing was stood over until today and the applicant directed to identify for the Court the grounds upon which he relied for judicial review. It was explained to the applicant the limited role of this Court in conducting judicial review and that it was not for this Court to reconsider the applicant’s factual claims and make different findings or reach different conclusions.
This morning the applicant has identified the following grounds orally. By consent the applicant was granted leave to rely on ground identified by him at the hearing this morning. They are as follows:
i)That the Tribunal did not consider his application comprehensively.
ii)That the Tribunal was biased against him in that it appeared to be against the applicant’s assertion of being a Falun Gong practitioner from the outset.
iii)That the Tribunal did not consider the applicant’s Falun Gong practice in Australia.
iv)That the Tribunal subjectively decided that the applicant was not a Falun Gong practitioner and did not objectively construe his case.
v)That the Tribunal refused the applicant’s application without evidence and based its decision on subjective material.
vi)That the Tribunal did not consider photographs of the applicant on the internet and other evidence in support of the applicant’s application.
RECORDED : NOT TRANSCRIBED
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED
The background to this application and the applicant’s claims and Tribunal’s statement of reasons are accurately summarised by the first respondent in the outline of submissions as follows:
“BACKGROUND
2. The applicant is a citizen of the People’s Republic of China (“PRC”), who arrived in Australia on 25 July 2006 and applied for a protection visa on 18 September 2006 claiming to fear persecution by reason of his belief in Falun Gong. On 20 October 2006 a delegate of the Minister refused to grant the applicant a protection visa.
3. On 21 November 2006 the applicant applied to the Tribunal for review of the delegate’s decision. On 11 January 2007 the Tribunal conducted an oral hearing. The applicant appeared to give evidence and make submissions (CB 55).
4. On 1 February 2007 the Tribunal handed down its decision dated 11 January 2007 and affirmed the delegate’s decision.
5. On 7 March 2007 the applicant filed an application for judicial review in this Court.
THE APPLICANT’S CLAIMS
6. The applicant claims to fear persecution in the PRC by reason of being a Falun Gong practitioner (CB 27, 48). In particular, the Applicant claims:
(a) he practiced Falun Gong in the PRC from 1998 until it was banned in 1999 (CB 64.7);
(b) he was detained for 2 weeks after the crackdown on Falun Gong in 1999 and was subjected to brainwashing by the authorities (CB 64.7);
(c) after he was released in 1999, although the Applicant ceased to be involved in any further Falun Gong activities, the authorities kept him under surveillance. The authorities ceased contact with the Applicant in 2004 (CB 64.8);
(d) he was dismissed by his employer in 2000 (CB 27.3, 48.3);
(e) in Australia he practices alone at home because he has not had the opportunity to participate in organised Falun Gong activities (CB 65.2); and
(f) in the PRC he would be subjected to persecution and would be prevented from practicing Falun Gong (CB 27.4, 48.4).
TRIBUNAL’S STATEMENT OF REASONS
7. The Tribunal accepted the Applicant’s claims as outlined in paragraph 6(a)-(d) (CB 66.4). However, the Tribunal affirmed the delegate’s decision for the following reasons:
(a) on the basis of the Applicant’s oral evidence (CB 64.8), it was satisfied that, at the time of his departure in 2006, the Applicant was no longer a person of interest to the PRC authorities (CB 66.5);
(b) on the basis of the Applicant’s oral evidence (CB 64.7, 65.1), it was satisfied that, at the time of his departure in 2006, the Applicant was no longer a person of interest to the PRC authorities (CB 66.5);
(c) having regard to the applicant’s lack of knowledge of Falun Gong beliefs and exercises, as demonstrated at the Tribunal hearing, it was not satisfied that the Applicant was a genuine Falun Gong practitioner and found that he had greatly exaggerated his interest in Falun Gong to enhance his protection visa application (CB 67.1);
(d) it did not accept as credible that the Applicant left the PRC for Australia in order to pursue an interest in Falun Gong and found that the Applicant had not participated in Falun Gong activities in Australia because he did not have a genuine interest in Falun Gong (CB 67.3);
(e) it was satisfied that the Applicant would not attract the adverse interest of the PRC authorities in the future because of his claimed interest in Falun Gong (CB 67.6).”
The proceeding before this Court
Ground 1 - That the Tribunal did not consider his application comprehensively.
Ground 1 is a bare assertion of error and is not supported by any particulars. An analysis of the Tribunal’s decision is dealt with below.
Ground 2 - That the Tribunal was biased against him in that it appeared to be against the applicant’s assertion of being a Falun Gong practitioner from the outset
Ground 2 alleges bias, which is a serious allegation and requires evidence, at least a copy of the transcript (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668). This ground is not supported by any particulars or evidence. The applicant attended a directions hearing before me on 22 March 2007, on which occasion, he was given leave to file and serve an amended application giving complete particulars of each ground of review and directed to file and serve any evidence by way of affidavit which he intended to rely, including any transcript of the Tribunal hearing (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115]).
Accordingly, ground two is not made out.
Ground 3 - That the Tribunal did not consider the applicant’s Falun Gong practice in Australia.
Ground 3 is that the Tribunal did not consider the applicant’s Falun Gong practice in Australia.
A fair reading of the Tribunal’s decision makes clear that the Tribunal had regard to the applicant’s claims of having practised Falun Gong in Australia. However, the applicant’s assertions of such practice were rejected by the Tribunal.
The Tribunal found that the applicant was unable to demonstrate a real understanding of Falun Gong beliefs and activities when the Tribunal discussed those matters with him at the hearing. The Tribunal also found that the applicant had not participated in Falun Gong activities in Australia or sought to learn the basic exercises of Falun Gong. The Tribunal did not accept that the applicant had a genuine interest in Falun Gong and did not accept as credible the applicant’s claims that the applicant is a genuine Falun Gong practitioner.
The Tribunal also rejected the applicant’s claim that he left the PRC to come to Australia to pursue an interest in Falun Gong.
The Tribunal, however, was prepared to accept that the applicant was involved in China in Falun Gong from 1998 until the group was banned by the government in mid-1999. The Tribunal also accepted that in 1999 the applicant was detained and mistreated for two weeks and dismissed from his work unit in 2000. The Tribunal also accepted the applicant’s claim that between 1999 and 2004 he was monitored by authorities and told not to resume his practice or his involvement with Falun Gong.
The Tribunal noted that the applicant claimed that he maintained an interest in Falun Gong and has been practising Falun Gong in Australia, however did not accept the applicant’s claim of being a practising Falun Gong member or that the applicant had any interest in Falun Gong. The Tribunal noted the applicant’s claims that, when he arrived in Australia he practised Falun Gong at home by himself, and noted that he said he did not know how to find other Falun Gong practitioners in Sydney or elsewhere.
The Tribunal put its concerns to the applicant about his lack of knowledge of Falun Gong activities and his lack of involvement with Falun Gong in Australia and noted the applicant’s responses.
However, the Tribunal was satisfied that the applicant stopped participating in Falun Gong after the group was banned by the PRC government in 1999 and found that when the applicant left the PRC he was no longer a person of interest to the PRC authorities.
The Tribunal’s findings, including its adverse credibility findings, were open to it on the evidence and material before it and for which it provided reasons.
The assessment of the applicant’s credibility is a matter for the Tribunal “par excellence” (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407).
A fair reading of the Tribunal decision makes clear that the Tribunal indeed considered the applicant’s claims of having been a Falun Gong practitioner in Australia and as stated above in these reasons the Tribunal’s rejection of that claim was open to it on the evidence before it and for which it gave reasons.
Accordingly, ground three is not made out.
Ground 4 - That the Tribunal subjectively decided that the applicant was not a Falun Gong practitioner and did not objectively construe his case.
Ground 4 is a bare assertion that the Tribunal subjectively decided that the applicant was not a Falun Gong practitioner and did not objectively construe his case. The allegation disclosed no error capable of review by this Court and is more in the nature of a disagreement with the findings and conclusions of the Tribunal and therefore inviting merits review, which this Court cannot undertake.
Accordingly, ground four is not made out.
Ground 5 - That the Tribunal refused the applicant’s application without evidence and based its decision on subjective material.
Ground 5 alleges that the Tribunal refused the applicant’s review application without evidence. Such an allegation is misconceived.
The Tribunal evaluated the evidence of the applicant before it as it was obliged to do and found the applicant’s claims of a continuing interest in Falun Gong not to be made out. The Tribunal, whilst it accepted the applicant may have been detained for two weeks in 1999 by reason of association with Falun Gong practitioners, was satisfied on the evidence before it that the applicant had stopped participating in Falun Gong activities after that time and was no longer of interest to the PRC authorities when he left the PRC in 2006. For that reason the Tribunal found that the applicant would not be of interest to the PRC authorities in the reasonably foreseeable future because the Tribunal did not accept that the applicant is a Falun Gong practitioner.
In making those findings and reaching those conclusions the Tribunal had regard to the applicant’s own evidence and the findings and conclusions of the Tribunal were open to it on the evidence before it.
The independent or other evidence to which the Tribunal does have regard is a matter for the Tribunal, as is the weight which it may give to any such evidence (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]).
In the proceeding before this Court, the Tribunal rejected the applicant’s claims based on the applicant’s own evidence.
Accordingly ground five is not made out.
Ground 6 - That the Tribunal did not consider photographs of the applicant on the internet and other evidence in support of the applicant’s application.
Ground 6 alleges that the Tribunal did not consider photographs of the applicant on the internet.
The applicant stated that he gave such photographs to his migration agent and cannot explain why they were not given by his agent to the Tribunal. The applicant said that he told the Tribunal that he participated in demonstrations. However, for reasons known only to the applicant, he agrees that he did not raise with the Tribunal the existence of the photographs or take any step to ensure that they had been brought to the attention of the Tribunal.
The applicant has provided no evidence in support of an allegation that he was let down by his migration agent in respect of the evidence provided by the Tribunal.
A fair reading of the Tribunal’s decision makes it clear that the applicant had every opportunity to provide to the Tribunal any evidence in support of his application at the hearing.
The applicant attended a directions hearing before me on 22 March 2007 at which time the orders made by me were explained to the applicant and he was given leave to file and serve an amended application giving complete particulars of each ground of review together with all evidence, including any transcript of the hearing. It was also explained to the applicant at that time by me that the grounds in his present application or in his initiating application were mere assertions of error unsupported by particulars. The applicant did not raise at that time with me that he was unaware of the grounds in that application and that he was merely signing blank documents that were subsequently then prepared by his migration agent without his authority or knowledge.
In any event, it cannot be an error on the Tribunal’s part going to its jurisdiction for the Tribunal to fail to consider evidence that was not brought to its attention by the applicant. Further, a fair reading of the Tribunal’s decision makes it clear that there was every opportunity for the applicant to give to the Tribunal at the hearing any evidence in support of his review application upon which he wished to rely.
In the circumstances ground 6 is not made out.
Conclusion
A fair reading of the Tribunal’s decision makes clear that the findings and conclusions made were open to it on the evidence before it and for which it provided reasons, otherwise the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision pursuant to s.474 of the Act.
Accordingly this Court has no jurisdiction to interfere and the proceeding before this Court is dismissed, with costs.
RECORDING : NOT TRANSCRIBED
ORDERS DELIVERED
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 13 December 2007
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