SZKMI v Minister for Immigration
[2007] FMCA 1140
•17 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKMI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1140 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| Re Minister for Immigration; Durairajasingham (2000) 168 ALR 487 |
| Applicant: | SZKMI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1154 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 17 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2007 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | Clayton Utz |
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 $3,450.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1154 of 2007
| SZKMI |
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 20 February 2007, and was handed down on 13 March 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China, and had made claims of persecution based upon her practice of Falun Gong. The background to the applicant's protection visa claims, her application to the Tribunal, and the Tribunal decision on it are set out in written submissions filed on behalf of the Minister on 11 July 2007. I adopt as background for the purposes of this judgment, with necessary amendments, paragraphs 2 through to 14 of the Minister's written submissions:
The applicant, a citizen of the People’s Republic of China (“PRC”), arrived in Australia on 22 July 2006. On 28 August 2006, she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs as it was then known (“Department”).
On 10 November 2006, the Minister's delegate refused to grant the applicant a protection visa.
On 11 December 2006, the applicant applied for review of the delegate’s decision in the Tribunal.
On 18 January 2007, the Tribunal conducted a hearing with the assistance of a Mandarin interpreter at which the applicant gave oral evidence.
On 13 March 2007, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa.
On 10 April 2007, the applicant filed an application for judicial review in this Court.
The applicant’s claims
The applicant claims she fears persecution in the PRC by reason of her practice of Falun Gong.
The applicant claims[1]:
[1] Green Book (“GB”) at 1- 30 and 104-107.
· she first came into contact with Falun Gong in 1997;
· she practices Falun Gong almost every morning;
· in May 1999, she was arrested and beaten and held in an iron cage for 1 month;
· when she was released, she continued to practice Falun Gong occasionally and secretively at her home, but the police would continually check her;
· she went to Hong Kong in 2004 and then returned to her home; and
· in 2005 she went to Singapore, (but did not make any inquiries about staying in Singapore).
The applicant had no trouble leaving the PRC. She left the PRC to come to Australia on 22 August 2006.
The Tribunal’s decision
The Tribunal reviewed the claims and evidence. First, it reviewed the applicable law. It then set out the claims and evidence. Finally, it set out its findings and reasons.
The Tribunal’s reason for affirming the delegate’s decision was that the Tribunal rejected the applicant’s claim that she was a Falun Gong practitioner[2].
The Tribunal did not believe the applicant and found she was not a credible witness. The Tribunal found, that based on the applicant's evidence given at the Tribunal hearing, she was not a Falun Gong practitioner. The Tribunal also reasoned that if the applicant had a subjective fear of persecution she would have made inquiries or sought protection when she was in Singapore, but she did not[3].
For these reasons, the Tribunal found the applicant was not a refugee and affirmed the delegate’s decision.
[2] GB at 108.
[3] GB at 108-109.
These proceedings began with a show cause application filed on 10 April 2007. The application was filed within time. The applicant continues to rely upon that application. The grounds in the application are conveniently identified in the Minister's submissions in paragraphs 15 to 18:
The applicant propounds three grounds of review in her application to this Court and asserts the Tribunal committed jurisdictional error.
The first ground of review asserts that the Tribunal breached s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) ("First Ground").
The second ground of review alleges that the Tribunal failed to consider whether the applicant would be persecuted if she returned to the PRC because of her membership of a particular social group ("Second Ground").
The third ground of review appears to assert that the Tribunal's decision was not based on "rational" or "logical foundation" ("Third Ground").
Two of the grounds are repeated in an accompanying affidavit filed with the application which I received as a submission. The affidavit does not add anything to the application.
A registrar gave the applicant the opportunity to amend her application and to file additional evidence in support of it on 3 May 2007 for the first time. The applicant has not taken advantage of that opportunity.
I invited oral submissions from her this afternoon. She was unable to tell me in what way the Tribunal had breached s.424A of the Migration Act and was unable to make any useful submissions in relation to the other grounds of review. She said that she was scared when she attended the Tribunal hearing and was afraid to answer questions. There is, however, no evidence of the applicant being inhibited from presenting her claims or answering questions at the hearing conducted by the Tribunal on 18 January 2007.
The evidence I have is limited to that contained in the court book filed on 17 May 2007. The presiding member describes (GB 104 to 106) what occurred at the hearing, and there is nothing in that discussion to suggest that the hearing opportunity afforded the applicant was not a real one.
There is no substance to the grounds of review advanced by the applicant. The Tribunal decision did not turn on information required to be disclosed pursuant to s.424A. I do not accept the Minister's submission that the Tribunal, if it was under an obligation of disclosure, met it in the form of the letter sent to the applicant dated 19 January 2007 (GB 94 and 95). That letter was sent pursuant to s.424 of the Migration Act, not s.424A. However, in my view, the Tribunal decision turned upon information given by the applicant to the Tribunal for the purposes of the review and country information. Neither class of information required disclosure pursuant to s.424A.
I accept the Minister's submissions in relation to the second and third grounds of review. I adopt, with any necessary amendments, paragraphs 28 to 31 of those written submissions:
The second and third grounds are not proper grounds of judicial review. They seek, in essence, a merits review of the Tribunal’s decision. Merits review of the Tribunal’s decision is impermissible.
The Tribunal plainly made its decision based on a finding that the applicant was not a credible witness. The Tribunal found that the applicant’s claim that she was a Falun Gong practitioner was not convincing by reason of the adverse credibility finding.
A decision as to the credit of the applicant is not open to review in this Court. Findings as to credit are a matter for the administrative decision maker par excellence: see Re Minister for Immigration; Durairajasingham (2000) 168 ALR 487.
Further, contrary to the applicant's assertion, the Tribunal did consider whether the Applicant would suffer persecution if she returned to the PRC and concluded that "the chance that such harm will befall her in the reasonably foreseeable future is remote[4]."
[4] GB at 109.3
I note that at the hearing the presiding member enquired of the applicant why she did not seek protection in 2004 when she visited Hong Kong and in 2005 when she went to Singapore. The applicant had a ready answer to the first question. Hong Kong is of course part of China, as was recognised by the Tribunal in its letter of 19 January 2007, and the reasons for the Tribunal decision at GB108. It was open to the Tribunal to conclude from the applicant's failure to at least inquire about protection in Singapore in 2005 that she had not at that time been afraid of persecution. Caution needs to be exercised in dealing with issues of subjective fear in assessing claims under the Convention. The Convention, in my view, does not require that applicants satisfy the Tribunal that they are fearful in the sense of trepidation. It does require that the Tribunal be satisfied that there is a well-founded fear of persecution with fear being assessed in terms of an apprehension of harm. Nevertheless, I see no error in the Tribunal’s approach.
It was open to the Tribunal to conclude on the material before it that the applicant was not a Falun Gong practitioner as she had claimed, and that she had not acted consistently with a well‑founded fear of persecution in China in her travels.
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 will so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,450. Scale costs would be $5,000. The applicant did not wish to be heard on costs. I accept costs of not less than $3,450 have been reasonably and properly incurred on behalf of the Minister.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 July 2007
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