SZKPG v Minister for Immigration
[2007] FMCA 1154
•10 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1154 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a citizen of People's Republic of China claiming fear of persecution as a Falun Gong practitioner – credibility – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 474 |
| Kopalapillai v Minister for Immigration, Multicultural & Indigenous Affairs (1998) 86 FCR 547 ReMinister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000)168 ALR 407 Attorney‑General (NSW) v Quin (1990) 170 CLR 1 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 SZBYR v Minister For Immigration & Citizenship [2007] HCA 26 |
| Applicant: | SZKPG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1442 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 July 2007 |
| Date of last submission: | 10 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1442 of 2007
| SZKPG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is asking the Court to review a decision of the Refugee Review Tribunal. The decision was signed on 16th February 2007 after a hearing which was conducted on 13th February. The decision was handed down on 8th March 2007. The Tribunal affirmed a decision of the Delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant filed his application and affidavit in support on 7th May 2007. In his application the Applicant asks the Court for orders in the nature of certiorari and mandamus setting aside the decision of the Tribunal and referring his application back to the Tribunal for determination according to the law. The Applicant's affidavit in support does no more than identify the Applicant and annex a copy of the Tribunal decision.
Background
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 29th August 2006. He applied for a Protection (Class XA) visa on 9th October 2006 but it was refused on
27 November. On 29th December 2006 the Applicant applied to the Refugee Review Tribunal for a review of that decision. He did not provide any additional documentary information to the Tribunal at the time he lodged his application.
The Tribunal wrote to the Applicant on 12th January 2007. It sent him three letters all on the same day. The first letter invited him to attend a hearing at 9:00am on 13th February 2007. The second letter written under the provisions of s.424 of the Migration Act asked the Applicant for additional information. The information sought was whether the Applicant had previously travelled to Australia. The third letter was written under the provisions of s.424A of the Migration Act. That letter invited the Applicant to comment on certain information that would, subject to his comments, be the reason or part of the reason for deciding that he was not entitled to a protection visa: The information was as follows:
a)His statement provided with a primary application that he was detained by the authorities in 2004;
b)His claim that he resided at the same address from birth until August 2006;
c)He did not apply for a passport until 2005 and did not obtain the visa to travel to Australia until 2006.
The Tribunal informed the Applicant that the information was relevant because it may cause the Tribunal to find that he was of no interest to the Chinese authorities whilst residing in China and did not have a well‑founded fear of persecution after 2004 and before he departed the country.
The letter also said the information was relevant because it may cause the Tribunal to question his credibility. The letter referred to the fact that the Applicant's passport was issued in his own name in March 2005 and that he said that he left the country legally. The letter told the Applicant that that information was relevant because it may cause the Tribunal to find that he was of no interest to the Chinese authorities when the passport was issued or when he left the country. The information was also said to be relevant because it may cause the Tribunal to question his credibility.
The Applicant replied to the Invitation to Hearing by completing the Response to Hearing Invitation indicating he wished to attend. He did not provide any reply to the other letters. He did attend the hearing and he provided a copy of his Chinese passport. At the hearing the Applicant gave evidence and was asked questions by the Tribunal Member.
The Tribunal handed down its decision on 8th March 2007. A copy of the Tribunal decision record can be found at pages 80 through to 99 of the Court book. The Tribunal sets out the Applicant's claims in evidence in the decision record from page 83 through to 92. The Tribunal also refers to evidence through other sources being independent country information from pages 92 through to 94. The Tribunal's findings and reasons are set out on pages 94 through to 99 of the Court book.
The Tribunal’s findings and reasons
The Tribunal noted that the Applicant had travelled to Australia on a valid Chinese passport, who claimed to be a national of China. The Tribunal accepted that claim and assessed the Applicant's claims against the People's Republic of China as his country of nationality.
However, the Tribunal did not find the Applicant to be a credible witness. The Tribunal said at page 94 of the Court book:
The applicant was often vague and evasive in his answers and his claims in oral evidence varied considerably. The Tribunal finds that the applicant was not truthful in his evidence to the Tribunal.
The Tribunal went on to say at page 95 of the Court book:
The applicant claims that he fears persecution because of his involvement in the practice of Falun Gong. The Tribunal accepts that Falun Gong may be considered to be a religion and that those practising Falun Gong may constitute a particular social group. On the basis of independent evidence cited above, the Tribunal also accepts that Falun Gong practitioners face persecution in China and that such persecution is for a Convention reason. However, for the reasons that follow, the Tribunal is not satisfied that the applicant was involved with Falun Gong as he claims.
The Tribunal found the applicant's evidence at the hearing about his initial involvement with Falun Gong to be both inconsistent and implausible. The applicant provided different answers as to when he became first acquainted with Falun Gong and when he started to practice Falun Gong.[1]
[1] See Court Book at page 95.
The Tribunal then set out on pages 95 through to 97 why it formed such an adverse view of his credibility. The Tribunal noted that when questioned about Falun Gong, the Applicant displayed only a rudimentary knowledge about its philosophy and practice.
The Tribunal went on to consider the Applicant's other claims and found that the Applicant was not a genuine or committed Falun Gong practitioner and found that if the Applicant were to return to China at that time or in the reasonably foreseeable future there was no real chance that he would face any harm because of his alleged involvement with Falun Gong or his alleged practice of Falun Gong or his alleged association with Falun Gong practitioners or for his express or implied political opinion or for any other Convention related reason.
The Tribunal affirmed the decision of the Delegate not to grant the Applicant protection visa.
The application for judicial review
In his application to the Court the Applicant sets out three grounds on which relief is sought:
1. The Tribunal made errors of law.
2. The Tribunal failed to comply with s.424A., its decision was based (or partly based) on the information contained in the application to conclude that the applicant “did not have a well‑founded fear of persecution while residing in China. (Page 5 of the decision record) without further confirmation in the hearing.
3. The Tribunal has failed to consider my claims properly and fairly, failed to give me an opportunity to comment on a matter. The decision is a lack of procedural fairness.
The Applicant did not file a written statement of submissions, but at the hearing told the Court that the Tribunal did not give him the opportunity to comment on the Tribunal's view that the Applicant was not a credible witness. He challenged the Tribunal's finding that he was not a Falun Gong practitioner and asserted that he had started to read Falun Gong books in 2004.
The Applicant sought to provide further evidence from the Bar table, but I indicated that the Court cannot receive fresh evidence on an application for judicial review. The Applicant also referred to the fact that all the questions from the Tribunal were referred to him by an interpreter. He said that he was afraid that he could not understand the questions properly. He also pointed out that he was a bit nervous at the hearing. However, in answer to questions from the Bench the Applicant confirmed that he did not tell the Tribunal about either of those matters.
The Applicant has not provided any evidence by way of a transcript or an affidavit in support of any claim of an inadequacy in interpreting or of any procedural irregularity at the hearing. The Applicant has made a blanket statement in his first ground that the Tribunal made errors of law. I am not satisfied that that claim can be sustained.
The Tribunal wrote to the Applicant under the provisions of s.425 of the Migration Act and invited him to attend a hearing. He gave evidence with the assistance of an interpreter. There was no difficulty about the Applicant's attending a hearing and he was invited in plenty of time.
The error of law that the Applicant alleges in his second ground is a breach of s.424A of the Migration Act. I am not satisfied that any such error has been made out. It is clear from the Tribunal decision that the principal reason why the Tribunal rejected the Applicant's claims was because it did not accept his evidence at the Tribunal hearing.
The Tribunal makes it clear at page 95 of the Court book that the Applicant's evidence at the hearing about his involvement with Falun Gong, which is the primary basis of his claim, was inconsistent and implausible. It is the Applicant's rudimentary knowledge of Falun Gong philosophy and practice at the hearing that caused the Tribunal to find the Applicant had a serious credibility problem.
The Tribunal had also written to the Applicant under the provisions of s.424A of the Migration Act and raised issues with him, pointing out that they may cause the Tribunal to question his credibility. I am satisfied that the Applicant attended the hearing in the knowledge that the credibility of his claims was a live issue for the Tribunal.
Counsel for the First Respondent has submitted that the findings made by the Tribunal about the Applicant's credibility were open to it on the evidence and were rationally based. (See Kopalapillai v Minister for Immigration, Multicultural & Indigenous Affairs (1998) 86 FCR 547 at 558 to 559). The Court cannot review the correctness or fairness of those findings. (See ReMinister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000)168 ALR 407 at [67]; Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 35 to 37).
It is also submitted by counsel for the Minister that the remainder of the Applicant's claims were rejected because they lacked a Convention nexus, which is thus the Tribunal had assessed those claims as inadequate to satisfy it that the claims had a Convention basis. That assessment also constitutes a subjective appraisal of the material before it and it does not constitute information (See of SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29] and also SZBYR v Minister For Immigration & Citizenship [2007] HCA 26 at [15] to [19]).
The issues about the Applicant's passport were raised in the s.424A letter and did not in the end turn out to be reasons upon which the Tribunal relied to affirm the Delegate's decision. The Tribunal noted that despite his claims of having been discriminated against or persecuted as a Falun Gong practitioner the Applicant was able to maintain a senior position at the factory where he worked.
The Applicant sought to lead evidence indicating why that was a matter that should be believed, but, as I indicated earlier, the Court cannot receive fresh evidence on factual matters on an application for judicial review. I am not satisfied that the Applicant has demonstrated any jurisdictional error.
The Applicant is certainly not legally represented, but my independent reading of the Tribunal decision and the other material does not indicate any arguable case for jurisdictional error. I find the Tribunal decision to be a privative clause decision as defined by sub-s.474(2) of the Migration Act. As it is a privative clause decision it is not subject to orders in the nature of certiorari or mandamus. It follows that the application must be dismissed.
There is an application for costs on behalf of the Minister in the sum of $4,500.00 inclusive of counsel's fees. The Applicant has been unsuccessful in his claim and in my view the Court should follow the practice that costs follow the event. The amount of costs including counsel's fees is estimated at $4,500.00. That is well within the scale provided by the Federal Magistrates Court Rules.
Against this the Applicant points out that he is not in employment and asks for that amount to be reduced. Whilst I am not satisfied that an appropriate costs figure should be reduced, I am certainly prepared to allow time to pay.
I will remove this application from the list of cases awaiting finalisation.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 18 July 2007
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