SZKIP v Minister for Immigration
[2007] FMCA 1650
•13 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKIP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1650 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution as a Falun Gong practitioner – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91R(3), 420(1), 424A, 425, 474 |
| Applicant: | SZKIP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 830 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 September 2007 |
| Date of Last Submission: | 13 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Solicitors for the Respondents: | Mr O'Brien |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 830 of 2007
| SZKIP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of the People's Republic of China. He asks the Court to issue a writ of certiorari to set aside a decision made by the Refugee Review Tribunal on 15th February 2007. That decision refused him a protection visa for which he had applied on the basis that he is a Falun Gong practitioner and fears persecution in China for that reason. He also asks the Court for an order in the nature of mandamus to send his case back to the Tribunal for reconsideration according to law. He has set out two grounds in his application, saying, first:
Review the decision made by the Tribunal which is not satisfied that I had a well-founded fear of persecution for a Convention reason in China.
And second:
The Tribunal disregarded my relevant conduct according to s.91R of the Act and the Tribunal made error on this finding.
The applicant has today, in effect, asked the Court to rehear his application for a visa on its facts. The Court is unable to do because it does not have the jurisdiction to do so. It is not open to the Court to conduct what is known as merits review of the Tribunal decision.
The Court cannot rehear the case on its facts because fact-finding is a matter for the administrative decision-maker. So long as there is evidence upon which the Tribunal was able to make a decision, then there is no place for the Court to interfere, except to consider whether the Tribunal fell into jurisdictional error in arriving at its decision.
Background
The background to this matter is that the applicant, a citizen of the People's Republic of China, arrived in Australia on 7th July 2006.
He applied for a protection (Class XA) visa on 12th July.
He accompanied his application with a two and a half page typed statement. A copy of that statement can be found at pages 27 through to 29 of the Court Book. He claimed in that statement a well-founded fear of being persecuted by the authorities as a member of Falun Gong and a Falun Gong practitioner. He said that in China Falun Gong is a non-government people's organisation and has been attacked and persecuted by the Chinese Government. He described in his statement how he was introduced to Falun Gong and read a book about the practice and decided to practice Falun Gong following the book.
He found that his health improved and joined a Falun Gong group.
He described how in July 1999 the Chinese Government outlawed the practice and launched a persecution against all those who practised Falun Gong because they thought it was an evil belief. He said that in July 2002 when he was practising Falun Gong with other practitioners, police came and took them to a detention centre. He claimed that he was brutally kicked several times and ill-treated in detention where he remained for a month. He found out that he was released because his family paid a big fine and his parents asked people to sign a statement for him that he would not practice Falun Gong any more. He claimed to have practised Falun Gong underground after his release, however, he was dismissed by his company after he was released and eventually fearing for his life he decided to escape China and the Chinese Government and paid money and obtained a passport and visa and left China. He expressed great admiration for Australia in his statement, which he described as a beautiful country.
A delegate of the Minister for Immigration & Multicultural Affairs, as the Minister was then called, refused his application for a visa on
3rd August 2006. On 23rd October in that year the applicant applied to the Refugee Review Tribunal for review of the delegate's decision. The Tribunal wrote to the applicant and invited him to attend a hearing on 28th November 2006. The applicant attended the hearing and gave evidence with the assistance of an interpreter in Mandarin, which is the official language of the People's Republic of China.
After the hearing on 12th December 2006 the Tribunal wrote to the applicant in a letter headed "Invitation to comment on information". That letter told the applicant that the Tribunal had information that would, subject to any comments he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa.
The letter then set out three points of information and told him that the information in his application was adverse to him because it may contradict his submission and the oral evidence that he gave at the hearing and may indicate that he did not tell the Tribunal the truth about his true employment status and the length of his employment in China. The letter went on to tell the applicant what other conclusions the Tribunal may draw from the information.
The letter then went on to refer to another piece of information about the grant of a passport from the People's Republic of China and an Australian subclass 676 tourist visa. The letter told the applicant that this information was adverse to him because country information available to the Tribunal indicated that a person who was a prominent practitioner or a high-level Falun Gong functionary would not be issued with a passport or allowed to travel overseas. The letter told the applicant that the Tribunal, amongst other things, may not be satisfied that his return to China would support a finding that he had a
well-founded fear of being persecuted by the Chinese authorities.
The Tribunal invited the applicant to comment on that information in writing in English by 4th January 2007. This letter was clearly intended to comply with the requirements of s.424A of the Migration Act.
The applicant did in fact comment in writing on the information in the letter. On 2nd January 2007 the applicant sent a one and a half page letter to the Tribunal duly typed in English relating to his obtaining of a passport and referring to taking money out of China. The letter also referred to his employment history, but all it said was:
About the employment history, maybe the people helped me filled in the application might made an error. I was working in Tianjin Huen Bo Hi Fu company. Huen Bo, which translate into English, is environment. So they translate into Hi Fu environment Equipment Company, which is the same Huen Bo Hi Fu Company.[1]
[1] Court Book 65-66
The Tribunal handed down its decision on 15th February 2007. A copy of the Tribunal decision record appears at pages 72 through to 86 of the Court Book. In the decision the Tribunal summarised the applicant's claims and evidence at pages 75 through to 82. In that section the Tribunal referred to its s. 424A letter of 12th December 2006 and the applicant's reply of 2nd January 2007. The Tribunal's findings and reasons are set out on pages 82 through to 85 of the Court Book.
The Tribunal accepted that the applicant was a citizen of the People's Republic of China based on a photocopied page of his passport located in the department file. The Tribunal then set out its findings and reasons under these headings:
a)The Applicant's Alleged Detention In July 2002;
b)The Applicant's Knowledge of Falun Gong;
c)Credibility;
d)The Applicant's Subjective Fear.
As to the applicant's alleged detention in July 2002, the Tribunal noted that the applicant claimed to have secured his release by payment of a bribe and signing an undertaking not to practice Falun Gong, but the Tribunal noted that the country information showed that the practice of Falun Gong has been brutally oppressed in China and found it implausible that in the circumstances the applicant would only have been subject to one month's detention irrespective of the bribe paid for his release. However, the Tribunal accepted that may have been possible. The Tribunal referred to the fact that the applicant changed his story when questioned in the hearing on a crucial claim, namely that he was a long-term practitioner who had adversely been drawn to the attention of the authorities. The Tribunal went on to find that the applicant was not a witness of truth and found that his claim of a fear of further harassment by the police to be a fabrication. The Tribunal considered the applicant's employment history and again found that the applicant had not contradicted the adverse information referred to in the s.424A letter and found that he was not a witness of truth.
As to the applicant's knowledge of Falun Gong, the Tribunal noted that the applicant was able to satisfy the Tribunal that he knew a reasonable amount about the practice of Falun Gong exercises. Although the Tribunal went on to find:
The mere fact a person knows a reasonable amount about a particular issue would not without more satisfy that the applicant was a genuine Falun Gong practitioner. The Tribunal finds that the applicant has never been a genuine Falun Gong practitioner. The applicant informed the Tribunal in the hearing that he has continued to publicly and regularly practice Falun Gong in Australia since his arrival in 2006. However, given the Tribunal's finding that he is not a witness of truth and not a genuine Falun Gong practitioner, and by virtue of s.91R(3) of the Act, the Tribunal has disregarded the applicant's relevant conduct in Australia as the Tribunal is not satisfied he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee.[2]
[2] Court Book 84
As to the issue of the applicant's credibility, the Tribunal referred to the doubts it had previously expressed and found that it was positively satisfied that the applicant was not a witness of truth. The Tribunal found that none of the applicant's material claims to invoke refugee protection obligations in Australia were true.
As to the applicant's subjective fear, the fourth heading, the Tribunal said this:
The applicant claimed at the Tribunal hearing he wished to return to China in a couple of years as he believed the Chinese authorities would have to act humanely, at least in or around the time of the 2008 Beijing Olympics. With respect, if the applicant feared persecution for the reason he claimed, the Tribunal would ordinarily have expected that he would have understood that returning to China as a Falun Gong practitioner from all reports in the reasonably foreseeable future may subject him to extreme danger. That the applicant even expressed such a claim led the Tribunal to doubt whether the applicant even had a subjective fear of harm.[3]
[3] Court Book 85
The two grounds in the applicant's application are hardly grounds at all. Ground 1 says:
Review the decision made by the Tribunal which is not satisfied that I had a well-founded fear of persecution for a Convention reason in China.
From the applicant's oral submissions that appeared to be a request to conduct a merits review. The applicant told the Court that he had had a relatively brief primary education and told the Court that he was very nervous at the Tribunal. He referred to his practice of Falun Gong in China. He referred to his love and admiration for Australia and his desire to live here. He claimed that there was no justice in China and said he came to Australia really because he could not survive in China. He referred the Court to a breach of s.420(1) of the Migration Act in the Tribunal's finding. That section says:
The Tribunal in carrying out its functions under this Act is to pursue the object of providing a mechanism of review that is fair, just, economical and informal and quick.
The fact that the Tribunal makes a finding that is adverse to the applicant's claims does not in itself establish that the Tribunal's mechanism of review of not fair, just, economical, informal or quick. Ground 1 does not disclose a jurisdictional error.
Ground 2 says:
The Tribunal disregarded my relevant conduct according to s.91R of the Act. The Tribunal made error on this finding.
Section 91R(3) says:
For the purposes of the application of this Act and the Regulations to a particular person (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in article 1A(2) of the Refugees Convention as amended by the Refugees Protocol disregard any conduct engaged in by the person in Australia unless (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The Tribunal's consideration of sub-s.91R(3) of the Act in the circumstances appears in the findings and reasons at page 84 of the Court Book where the Tribunal explained that it had disregarded the applicant's relevant conduct in Australia as a Falun Gong practitioner because the Tribunal was not satisfied that he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee. This was a comment on the applicant's claim to the Tribunal in the hearing that he had continued to practice Falun Gong in Australia publicly and regularly since his arrival in 2006. The Tribunal, however, having found that he was not a witness of truth and not a genuine practitioner, thereby considered under sub-s.91R(3) of the Act that it should disregard the applicant's relevant conduct in Australia.
In other words, that the applicant had not satisfied the Tribunal that he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee. That ground must fail.
I am mindful of the fact that the applicant is not legally represented.
In the circumstances, it is appropriate for the Court to consider whether any arguable case for a jurisdictional error appears in the Tribunal decision on the supporting material. The respondent Minister, Mr O'Brien, submitted that no issue had been raised by the applicant in relation to the doubts expressed by the Refugee Review Tribunal that the applicant had a subjective fear of persecution if he returned to China. Whilst the Tribunal had not identified the reports it was referring to which suggested that the applicant may be subjected to extreme danger on returning to China, it had previously made reference to country information that indicated that the practice of Falun Gong was being brutally oppressed in China, which led it to find that it was implausible that the applicant had been detained for only one month.
It was submitted that there was no betrayal of logic in the Tribunal's finding that if the applicant had a subjective fear of persecution on the basis of his claims to be a Falun Gong practitioner, which the Tribunal did not accept, he would not express any intention of returning to China in the reasonably foreseeable future. Accordingly, the Minister contended that the finding in relation to the applicant's subjective fear of harm did not give rise to any error, let alone in relation to the exercise of the Tribunal's jurisdiction. With respect, I agree, that this finding does not give rise to any jurisdictional error.
The Tribunal had sought to comply with the requirements of s.424A of the Migration Act by means of its letter of 12th December 2006.
The applicant did comment in reply to that letter and the Tribunal has considered the material and the comments. I am not satisfied that there is any breach of s.424A of the Migration Act.
As to whether there was a breach of s.425 of the Act, I note that the Tribunal wrote to the applicant and invited him to attend a hearing. The applicant attended the hearing. He gave evidence with the assistance of an interpreter in the Mandarin language. The Tribunal dealt with the issues that had been canvassed in the delegate's decision, namely:
a)the applicant's fear of persecution in China because of his association with Falun Gong,
b)the applicant's claims to have been detained,
c)the applicant's claim of having been dismissed from his employment,
d)the fact that the applicant was able to leave China on a passport issued by the Chinese Government despite his alleged detention.
It is noteworthy that the delegate of the Minister was not satisfied that the applicant was a Falun Gong practitioner in China and particularly not one to attract the adverse attention of the Chinese authorities as none of his evidence supported the applicant's claims[4].
[4] Court Book at 41
There is nothing to indicate that the applicant did not receive a fair hearing from the Tribunal and I am satisfied there is no breach of s.425 of the Migration Act.
I am not able to discern any jurisdictional error. It follows that the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. As such, it is final and conclusive and it is not subject to orders in the nature of certiorari or mandamus. The application must be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $2,500.00. This is an appropriate matter for costs and the amount of $2,500.00 which is sought is within the scale provided by the Federal Magistrates Court Rules. The applicant is to pay the first respondent's costs in the sum of $2,500.00.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 26 September 2007
0
0
2