SZKLV v Minister for Immigration
[2007] FMCA 1406
•8 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKLV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1406 |
| MIGRATION – Visa – Protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming decision not to grant 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.424A, 474 |
| Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411 referred to. Ibrahim v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 37 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 followed. |
| Applicant: | SZKLV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1119 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 August 2007 |
| Date of last submission: | 8 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2007 |
REPRESENTATION
| Applicant: | Applicant in Person |
| Counsel for the Respondent: | Ms McWilliam |
| Solicitors for the Respondent: | Clayton Utz |
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 1119 of 2007
| SZKLV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 21st February 2007. The Tribunal handed down its decision on 7th March 2007. The Tribunal affirmed the decision of a Delegate of the Minister for Immigration & Citizenship not to grant the Applicant a Protection (Class XA) visa.
The Applicant seeks judicial review of that decision. In an application filed on 4th April 2007 he asks for these orders:
a)The decision of the Refugee Review Tribunal should be quashed.
b)The matter be remitted to the Refugee Review Tribunal to be reconsidered according to law by a differently constituted Tribunal.
I am not satisfied that the Federal Magistrates Court, even if it did decide to make an order in the nature of mandamus remitting the Applicant to the Tribunal for consideration according to law, would have the power to direct that the Tribunal be differently constituted. How a Tribunal is constituted is a matter for the Principal Member of the Refugee Review Tribunal (SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [30]). In any event, as I explained to the Applicant, in order to set aside the Tribunal decision the Court must be satisfied that the decision is affected by jurisdictional error.
Background
The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 1st May 2006 and applied to what was then called the Department of Immigration & Multicultural Affairs for a protection visa. That application was made on 9th May 2006 and was refused by a Delegate of the Minister on 7th August 2006.
On 8th September 2006 the Applicant applied to the Refugee Review Tribunal for a review of the Delegate's decision. The Applicant provided a statement in support of his application for review. In the statement that he provided with his application for review he set out that he was a member of Falun Gong. He said that he had been exercising Falun Gong for a long period and that he had very poor health but benefited from Falun Gong. He complained in the statement that in May 1999 some Falun Dafa practitioners were beaten up, arrested and unlawfully interrogated. He said that Falun Dafa practitioners had no choice but to gather around the central government compound to voice their grievances but Falun Gong was officially regarded as an illegal organisation at the end of July 1999.
In his statement he said that he had never given up practising Falun Gong because he had never been adversely affected from it. He said that the government had warned him many times and he was put into detention and asked to attend re-education classes from time to time. He said he was released only if he conceded that Falun Gong was illegal. He claimed that in early 2000 he was arrested and sent to a custody centre again; he was released a month later but was told that the police would put him into detention when they wanted to.
As a result he lost his job and could not find a new job. Eventually he found a new job in another province. He said in January 2006 he received a warning from the Shenzhen Police Station that he would be sent to gaol again because he was a Falun Gong practitioner. He said he therefore came to Australia on 1st May 2006.
The Tribunal invited the Applicant to attend a hearing on 27th October 2006. The Applicant attended the Tribunal hearing and gave evidence with the assistance of an interpreter. A month after the hearing on 27th November 2006 the Tribunal wrote to the Applicant. The letter was headed ‘Invitation to Comment on Information’ and 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 what that information was. It related to inconsistencies between his claims in his protection visa application and his oral evidence at the hearing. It also related to the circumstances of his obtaining a passport and departing China. The letter invited the Applicant to comment on the information in writing by 20th December 2006.
The Tribunal did not receive any comments by 20th December but on 17th January received a handwritten statement indicating that the Applicant practised Falun Dafa at Parramatta Town Hall at 6:30pm three times every week from December 2006 until then. A set of photographs were provided showing people exercising, including the Applicant, and showing the Applicant beside a motor car marked with the internet address of the Falun Dafa organisation.
The Tribunal wrote again to the Applicant on 23rd January 2007. This letter was headed ‘Invitation to Comment on Information and to Provide Additional Information’. It would appear that this letter was written to comply with the requirements of s.424A of the Migration Act in the same way as the Tribunal's letter of 27th November 2006 was. It also appears that this letter was intended to comply with s.424 of the Act.
The letter set out information that it said would, subject to any comments made by the Applicant, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter referred to the note and the photograph provided by the Applicant and referred the Applicant to the provisions of sub-s.91R(3) of the Migration Act. The letter went on to say:
The Tribunal notes that you have not responded to the issues raised in its letter, dated 27 November 2006. Given the Tribunal's concerns regarding the credibility of your evidence to date, the Tribunal invites you to provide a submission as to why s.91R(3) should not be applied in your case.[1]
The Applicant was invited to comment in writing and to provide those comments by 16th February 2007.
[1] See Court Book at page 60.
The Tribunal received a typed letter from the Applicant, in English, dated 30th January 2007. The Tribunal received it on 1st February 2007. The Applicant also provided further information by way of statements from witnesses to the effect that the Applicant had practised Falun Gong thrice a week in the park near Parramatta Town Hall together with other Falun Gong fellows. It also set out that he attends Falun Dafa group study. One letter even went so far as to say that the Applicant has a high level of understanding about Falun Gong. There are also some photographs provided.
The Tribunal handed down its decision on 7th March 2007. Before it did so however, it received further material on 19th February 2007. The Member decided to recall the decision record and provide a new decision record. A copy of a memorandum to that effect appears at page 78 of the Court Book. The Tribunal's decision record appears at pages 80 through to 98 of the Court Book.
On 14th March the Tribunal received a number of documents from the Applicant in support of his case. The Tribunal wrote to the Applicant on 22nd March saying, amongst other things saying, amongst other things:
I have raised this evidence with the Presiding Member who has advised that, as the decision has been handed down, the Tribunal no longer has jurisdiction in this matter and the new material will not be considered.[2]
[2] See Court Book at page 110
The Tribunal's decision refers extensively to the Applicant's evidence and refers to the two letters under the provisions of s.424A of the Migration Act dated 27th November 2006 and 23rd January 2007. The Tribunal decision refers to the material received by the Tribunal on
8th February 2007 and 19th February 2007.The Tribunal also considered Independent Country Information relating to the Falun Gong movement and Falun Gong practitioners. The Independent Country Information also related to exit procedures operating in China and mentioned that the Chinese government maintains lists of people wanted by the authorities for whom arrest warrants have been issued. Independent Country Information available to the Tribunal indicated that it was improbable that dissidents on wanted lists would be able to exit on passports issued in their own names.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons can be found at pages 93 through to 98 of the Court Book. The Tribunal noted that the Applicant had travelled to Australia on a valid Chinese passport and accepted that the Applicant was a national of China based on that material. The Tribunal accepted that Falun Gong practitioners faced persecution in China and that such persecution was for a Convention reason. However, the Tribunal was not satisfied that the Applicant was involved with Falun Gong as he claims. The Tribunal said
Overall, the Tribunal found the applicant to be an untruthful witness. In certain key respects, the applicant's evidence lacked credibility and consistency. The Tribunal finds that the applicant's claims in relation to his Falun Gong activities in China have been invented.[3]
[3] See Court Book at page 94
The Tribunal then on pages 94 and 95 set out why it took an adverse view of his credibility. The Tribunal did not accept that the Applicant had ever practised Falun Gong in China and therefore did not accept that in January 2006 the Chinese authorities in Shenzhen commenced the investigation and accused the Applicant of being a Falun Gong practitioner.
The Tribunal did not accept that the Applicant was of any interest to the authorities as a current or former Falun Gong practitioner or that the authorities believed that he was. The Tribunal at page 96 referred to Independent Country Information on the subject of the ability of people regarded in China as dissidents would be able to leave China on a passport issued in their own name.
The Tribunal went on to consider the Applicant's practice of Falun Gong in Australia and noted that he had taken part in Falun Gong activities in this country since December 2006. The Tribunal did, however, refer to the provisions of s.91R(3) of the Migration Act and having found the Applicant had not given credible evidence in relation to his practice of Falun Gong in China was not satisfied that the Applicant has practised Falun Gong in Australia for any reason other to strengthen his claim to be a refugee.
The reasons for that are set out on page 97 of the Court Book. The Tribunal disregarded the Applicant's conduct in practising Falun Gong in Australia in assessing whether he has a well founded fear of persecution for one or more of the reasons mentioned in Article 1A(2) of the Refugee's Convention as amended by the Refugee's Protocol.
The Tribunal did not accept that the Applicant had suffered persecution in China nor that if he were to return to China that he would continue to practice Falun Gong or that there was a real chance that he would be persecuted for reasons of his real or imputed religious beliefs, his real or imputed political opinion or his membership of any particular social group for the purpose of the Convention on the basis of his claim of his involvement with Falun Gong.
The Tribunal was not satisfied that the Applicant had a well founded fear of persecution for a Convention reason if he were to return to China and affirmed the decision of the Delegate not to grant the Applicant a protection visa.
Application for Judicial Review
In his application for judicial review the Applicant sets out three grounds:
i)In making the decision, the Tribunal's finding of a number of jurisdictional facts was not reasonable.
ii)The decision made by the Refugee Review Tribunal is illogical.
iii)It is not reasonable that the Tribunal did not accept that he was a Falun Gong practitioner.
The Applicant did not provide a written outline of submissions but attended Court and made oral submissions. He told the Court that the Tribunal decision was illogical because he provided many additional materials but the Tribunal did not consider that material. He said it was ‘a little bit late’. I note that it was in fact received 7 days after the decision was handed down. The Applicant said that it was incorrect for the Tribunal to consider that he was not a Falun Gong practitioner because he provided evidence that he was a Falun Gong practitioner in China and that he practised in Australia.
He claimed the Tribunal decision was wrong; he claimed that the Tribunal did not consider his application seriously because it did not consider the last batch of materials. The last batch of materials contained those documents received by the Tribunal on 14th March 2007 which was a week after the decision had been handed down. Ms McWilliam of counsel has referred me to the provisions of s.415 of the Migration Act and I am satisfied that the Tribunal had no jurisdiction to consider the material received on 14th March. It was, as its letter said, functus officio.
The Applicant's claims that the Tribunal's findings were not reasonable are, to my mind, directed towards the Tribunal's ultimate decision; both grounds are in fact an attempted merits review by challenging the Tribunal's factual findings and though not proper grounds of review as counsel for the First Respondent submitted and in my view they do not show jurisdictional error.
The Applicant did not provide any particulars as to why the findings were illogical and when I asked him to elucidate as to why the findings were illogical the Applicant referred to his claim about the Tribunal not considering all his material. Even if the findings were illogical that is not sufficient to establish an error of law. I am referred to the decisions of Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411 and also Ibrahim v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 37.
I am not satisfied that there is any illogicality. The Tribunal rejected the Applicant's oral evidence and found the Applicant not to be a credible witness. The Tribunal also considered Independent Country Information. In my view none of the Applicant's grounds has been made out and whilst I am conscious that the Applicant was not legally represented I have considered the decision myself and am unable to find any arguable case for jurisdictional error.
The Applicant was invited to a hearing, his evidence was heard and in the long run the Tribunal was not satisfied with it. There is no breach of s.425 of the Act. The Tribunal based its decisions on the applicant's evidence provided to the Tribunal for the purpose of the application and Independent Country information so there is no breach of s.424A of the Migration Act.
As I have indicated the Tribunal correctly assessed that it could not consider material received after it had handed down its decision. It did consider material provided by the Applicant prior to that, including material that was provided very late, so late that the Tribunal Member recalled the decision before it was handed down and prepared a new decision taking into account the materials provided.
There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by sub-s.472 of the Migration Act. Under sub-s.474(1) of the Act privative clause decisions are final and conclusive and not subject to orders in the nature of certiorari or mandamus that the Applicant seeks.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in his claim and this is a proper matter for a costs order.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 16 August 2007
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