SZKLE v Minister for Immigration
[2007] FMCA 1101
•11 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKLE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1101 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China because of the loss of his eel farm – applicant’ not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.420, 424A |
| Minister for Immigration v Eshetu (1999) 197 CLR 611 Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 Tobasi v Minister for Immigration (2002) 122 FCR 322 |
| Applicant: | SZKLE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1082 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 11 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1082 of 2007
| SZKLE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 13 February 2007 and was handed down on 27 February 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The background to the applicant's protection visa claims, his review application and the Tribunal decision on it are set out in the Minister's written submissions filed on 5 July 2007. I adopt as background for the purposes of this judgment with minor amendments paragraphs 2 to 6 of those written submissions:
The applicant, a citizen of the People’s Republic of China (PRC), claimed he and his family ran an eel farm that was forced to close due to actions of corrupt officials. The applicant’s family’s land was taken by the authorities and allocated to “Mr He” who bribed PRC officials. The family received no compensation for the land. The applicant organised a protest by local people at which the police used tear gas to break up the protestors. Around 15-16 locals were arrested but the applicant managed to flee with the help of two friends. The applicant then fled to Australia: court book (“CB”) 24-28.
Tribunal proceedings
The Tribunal accepted that the applicant had been involved in eel farming in his local area. The Tribunal also accepted that widespread corruption exists in the PRC and that changes have occurred in rural areas as a result of the country’s rapid economic growth: CB 94.1-94.3.
However, the Tribunal found that the applicant had not given credible evidence in relation to the actions of the local authorities and rejected his claims that the water was cut off to his land and the neighbouring farms. The Tribunal found the applicant’s evidence in relation to the sinking of three wells on his property to be implausible. Similarly, the Tribunal found the applicant’s evidence that some eels had survived after three months to be implausible. Further, the Tribunal did not accept that the Health and Environment authorities, acting independently or in collusion with Mr He, ordered the applicant to cease operating his eel farm. The Tribunal therefore did not accept that the applicant subsequently took protest action: CB 94.4-96.9.
The Tribunal did not accept that the applicant was in hiding from the authorities from May 2006 until he departed for Australia. The Tribunal also found that the applicant obtained a passport in the name of … because it enabled him to obtain an Australian visa, and not for the purposes of leaving China without being detected by the authorities. The Tribunal found that if the applicant were to face penalties as a result of using a false passport it would be as a result of a law of general application and would not constitute persecution for a Convention reason: CB 97.1-97.7.
The Tribunal did not accept that the applicant had come to the attention of the PRC authorities, that he had suffered serious harm amounting to persecution in the past, or that there was a real chance he would suffer persecution in the reasonably foreseeable future: CB 97.2-97.7.
These proceedings began with a show cause application filed on 3 April 2007. There was some confusion on the face of that application as to when the applicant claimed to have been notified of the Tribunal decision. That was resolved at the first court date on 24 April 2007 when the applicant confirmed that he had been notified on 8 March 2007. On that basis, I find that the application was filed within time.
The applicant now relies on an amended application filed on 4 June 2007. The amended application asserts that the Tribunal failed to carry out its statutory duty of review. The particulars are that the Tribunal's reasons do not demonstrate that it followed the logical path of reasoning in failing to accept the applicant's claims; that the Tribunal has not explained why each of the applicant's claims were rejected and that the only basis for rejecting all of the applicant's claims displayed in the Tribunal's decision is that the applicant initially found a practical solution to his problem that precluded him from later relying as a last resort on a practical measure. That description of the Tribunal's reasons is said to be an insufficient basis for the Tribunal's finding. The applicant continues to rely upon his affidavit filed with his original application. He also filed written submissions on 26 June 2007 in which he takes issue with factual findings made by the Tribunal and its reasoning process.
The applicant made extensive oral submissions at the hearing today. He believes that the Tribunal committed a procedural error in the course of making adverse credibility findings against him. In particular, the applicant rejects the Tribunal's reasoning as to his delay of about three months in taking action to protest against the local authorities' action in cutting off his water supply and in preventing him from using water from wells he had dug in order to keep his farm in production. I explored the applicant's submissions in some detail with him during the course of the hearing, but the debate did not rise above a contest over the merits of the Tribunal decision.
The applicant does submit that the Tribunal failed to meet its obligations under s.420 of the Migration Act 1958 (Cth) (“the Migration Act”). I understood him to be referring in particular to s.420(2)(b). On the basis of the High Court decision in Minister for Immigration v Eshetu (1999) 197 CLR 611, a breach of that section would not constitute a jurisdictional error. In his oral submissions the applicant also contended that the Tribunal failed to meet its obligations under s.424A(1) of the Migration Act. He conceded that the Tribunal decision was based upon the evidence he gave at the hearing conducted by the Tribunal, but asserts that the Tribunal misunderstood that information, thereby enlivening the obligation of disclosure under s.424A. In that the applicant is mistaken. Section 424A does not require disclosure of the Tribunal's reasoning process.
Further, I note from the record of the Tribunal's decision on pages 85 to 89 of the court book, which I received as evidence, that the applicant had the opportunity to discuss with the presiding member his concerns about the credibility of his claims. To the extent that the Tribunal was under an obligation to observe procedural fairness under the general law, the applicant has not demonstrated a breach of that duty.
In other respects, I agree with and adopt for the purposes of this judgment paragraphs 7 to 11 of the Minister's written submissions:
The amended application filed on 4 June 2007 raises three grounds of review. The first ground alleges that the Tribunal did not follow a “logical path or reasoning”. No particulars are provided and there is no support for this ground on the materials. In any event, there is no basis for a claim that there is some legal error which may be established by reason of irrationality or illogicality in the Tribunal’s reasoning.[1]
The second ground alleges that The Tribunal has not explained why each of the applicant’s claims were rejected. This is not a proper ground of review. The Tribunal gave detailed reasons for rejecting the applicant’s claims: CB 93.8-97.8. The Tribunal’s negative view of the applicant’s credibility was fatal to his claims. The basis for that conclusion is set out in the Tribunal’s reasons and was open to it on the evidence.
The third ground of the amended application is vague and meaningless in the absence of particulars. The applicant contends that there was insufficient basis for a finding by the Tribunal. In substance the applicant is asking the Court to undertake a review of the merits of the Tribunal’s decision and its assessment of the credibility of the applicant’s factual claims. This is not an appropriate line of attack in an application for judicial review, in which an applicant must identify a jurisdictional error.[2]
The applicant also filed written submissions on 26 June 2007. The submissions do not appear to relate to the grounds in the amended application, but instead take issue with a number of findings of fact of the Tribunal. The applicant asserts that the Tribunal made an “incorrect” finding and rejected his evidence on the basis of that “incorrect finding”.
The rejection of many of the applicant’s claims was, however, a purely factual conclusion. It amounted to an assessment of the applicant’s credibility, which is “the function of the primary decision-maker par excellence”.[3] It was a matter for the Tribunal to decide what evidence it found persuasive in deciding to reject the applicant’s claims. Disagreement with the Tribunal’s conclusions does not provide a basis upon which its decision could be set aside.
[1] Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9] per Gleeson CJ.
[2] Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 272.
[3] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Tobasi v Minister for Immigration (2002) 122 FCR 322, 344 [87].
I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. Scale costs after a final hearing would be $5,000. The Minister properly seeks costs in a lesser amount of $2,700. The applicant did not wish to be heard on costs. I accept that costs of not less than $2,700 have been properly and reasonably incurred on behalf of the Minister when assessed on a party-party basis. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application fixed in that amount.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 July 2007
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