SZKPW v Minister for Immigration
[2007] FMCA 1125
•16 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1125 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Abebe v The Commonwealth (1999) 197 CLR 510 NAKF v Minister for Immigration (2003) 199 ALR 412 SBBS v Minister for Immigration [2002] FCAFC 361 SJSB v Minister for Immigration [2004] FCAFC 225 SZBCS v Minister for Immigration [2005] FMCA 25 |
| Applicant: | SZKPW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1504 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 16 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Palmer Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $2,500, pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1504 of 2007
| SZKPW |
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 26 March 2007 and handed down on 17 April 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
Background facts relating to the applicant's protection visa claims, her application to the Tribunal and the Tribunal's decision are summarised in written submissions filed on behalf of the Minister on 12 July 2007. I adopt as background for the purposes of this judgment paragraphs 2 through to 6 of those written submissions.
The applicant, a citizen of the People’s Republic of China (“PRC”) claimed to fear persecution as a result of her practice of Falun Gong. The applicant claimed that she began practising Falun Gong in 1996. In 2000, the applicant claimed that she attended a demonstration in Beijing, where the police threw gas bottles into the crowd and she saw a mother and child badly burned. In 2004 the applicant travelled to Singapore to study, where she remained for 2 years, however, due to financial difficulties she was unable to continue her studies and then travelled to Australia: Court Book (“CB”) 27-28.
The applicant attended a hearing before the Tribunal on 26 March 2007.
The Tribunal was not satisfied of the applicant’s claim that she was a Falun Gong practitioner. It found that the applicant’s responses to questions relating to when she began practising Falun Gong were “inconsistent and lacked important details”: CB 71.8. Further, the Tribunal was not satisfied about the applicant’s level of knowledge of Falun Gong and found that “her knowledge is incommensurate with her claim of being a Falun Gong practitioner”: CB 72.4.
Accordingly, the Tribunal rejected the applicant’s claims that she had been a Falun Gong practitioner, had been persecuted by the Chinese authorities or that she had travelled to Singapore for any other reason than to study: CB 72.5.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason: CB 72.8.
These proceedings began with a show cause application filed on 11 May 2007. In that application the applicant asserted actual notification of the Tribunal decision on 19 April 2007. I find that the application was filed within time. That application is supported by an affidavit annexing a copy of the Tribunal decision. Paragraph 1 of the affidavit confirms actual notification of the Tribunal decision. Paragraph 2 of the affidavit is a submission. The applicant filed an amended application on 13 July 2007. She told me that she intended the amended application to augment rather than replace the original application. The application is in the form of a letter to me in which the applicant refers to her fears of a return to China.
Annexed to the amended application is a letter in the Chinese language and a typewritten English translation. The letter is dated 10 June 2007 and is purportedly from the applicant's father in China. The letter refers to risks the applicant will face should she return to China. The letter was not available to the Tribunal and hence could not be taken into account by it. The letter could, however, be taken into account by the Minister should he be willing to consider ministerial intervention. That is a matter for the Minister.
The applicant was distressed during today's hearing and I accept that she is genuinely afraid of returning to China. However, the question of whether she should receive a protection visa is beyond the scope of these proceedings. If the Tribunal decision is a valid one, any further consideration of the applicant's claims is a matter for the Minister.
I have before me as evidence the court book filed on 6 June 2007.
I also have the Minister's written submissions already referred to.
I invited oral submissions from the applicant. She referred to her fears and the genuineness of her protection visa claims. She is plainly concerned about the merits of the Tribunal decision. However, she was not in a position to make any submission on any legal issue.
The amended application is concerned exclusively with the merits of the Tribunal decision. So in substance is the original application, although couched in terms which suggest an intention to raise a legal issue. I agree with and adopt for the purposes of this judgment paragraphs 8 through to 16 of the Minister's written submissions.
The first ground pleads that “the Tribunal and the primary decision maker erred in failing to recognise the principle of non-refoulment”. This ground is not particularised and is meaningless without particulars.
The second ground pleads that the “Tribunal and primary decision maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application rather than considering on the basis of all the evidence out before it whether or not it should be satisfied of the applicant’s claims of refugee status and the Tribunal failed to consider whether any other motives could ground a finding of lake of bona fides” (sic).
We understand this ground to be an allegation that the Tribunal decision was made in bad faith. It is a serious allegation to suggest that the Tribunal made its decision in bad faith. The circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme, and this is especially so where all that the applicant relies upon is the written reasons for the decision under review.[1]
In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 412 at [24] Gyles J held that in order to make out a case of bad faith it must be shown:
“that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him – tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples.”
The material before the Court does not provide any basis for such an allegation of impropriety against the Tribunal member, or that the Tribunal approached the matter with a closed mind.
The third ground alleges that the “Tribunal and primary decision maker erred in finding that the general attack on the applicant’s credit as an element to make a bona fide consideration of the application”. To the extent that this ground alleges that the Tribunal acted in bad faith we refer to paragraphs [10]-[12] above.
The Tribunal did not commit any jurisdictional error in its assessment of the applicant’s claims. The Tribunal clearly had regard to the applicant’s claims in her protection visa application and oral evidence at the hearing and did not accept her claims essentially based on her limited knowledge of Falun Gong. These findings of fact were open to the Tribunal and no error is apparent in the way it arrived at those findings.
The Tribunal was not obliged to accept the applicant’s claims at face value and no jurisdictional error is revealed in the approach or findings of the Tribunal because the facts that were put forward by the applicant did not cause it to be satisfied as to the applicable criteria.[2]
The fourth ground alleges that the “Tribunal and primary decision maker erred in their construction of the Migration Regulation 1958 (the Act) Part 8”. This ground is not particularised and is meaningless without particulars.
[1] SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] to [44]
[2] SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 per Ryan, Jacobson and Lander JJ at [15]-[16]; and SZBCS v Minister for Immigration [2005] FMCA 25 at [6]; Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187]
The applicant has not demonstrated any arguable case of jurisdictional error by the Tribunal. Neither is any arguable case of jurisdictional error apparent to me from my own reading of the material. Accordingly, I order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2500. The applicant initially did not make any submissions on costs but sought clarification of the reasons for my decision and her options. In the course of delivering my reasons on costs the applicant intervened to submit that she could not afford to pay a costs order. However, as I pointed out to her, the issue for me is not her capacity to pay, but whether the costs have been reasonably and properly incurred. I see no reason to depart from the court scale in this matter. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the sum of $2500 in accordance with rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Deputy Associate:
Date: 18 July 2007
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