SZKSS v Minister for Immigration
[2008] FMCA 730
•27 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKSS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 730 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of China – claiming to fear persecution for being a member of a particular social group – Falun Gong practitioner – whether denial of procedural fairness – no reviewable error. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425, 474 |
| SZHCJ v Minister for Immigration and Multicultural Affairs (2007) FCA 205 |
| Applicant: | SZKSS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 792 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 May 2008 |
| Date of Last Submission: | 26 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2008 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 792 of 2008
| SZKSS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People's Republic of China. He asks the Court to set aside a decision of the Refugee Review Tribunal and remit his case to the Tribunal for determination according to law. In a decision signed on 4 February 2008 and handed down on 11 March the Tribunal affirmed the decision of Delegate of the Minister for Immigration & Citizenship not to grant the applicant a Protection (Class XA) Visa.
The applicant claims that the Tribunal fell into jurisdictional error when making the decision in two ways.
(a)Jurisdictional error has been made. RRT took the cases which are against me. They did not take the successful case to support me.
(b)Procedural fairness has been denied. RRT did not give me letter to explain the doubts.
The first respondent, the Minister for Immigration & Citizenship filed a response on 18 April 2008. In that response the Minister claims that the application has not raised an arguable case for the relief claimed and relies on r.44.12(1)(a) of the Federal Magistrates Court Rules.
The background to this matter is that the applicant arrived in Australia on 29 December 2006. He applied for a protection visa on 8 January 2007. He claims a fear of persecution if he were to return to China on the basis that he has been a Falun Gong practitioner since May 2004.
A Delegate of the Minister considered his application but was not satisfied that he was targeted by the Chinese authorities because of his Falun Gong beliefs. The Delegate set out a number of reasons which were considered to cast serious doubts on the credibility of the applicant's claims and the genuineness of his claimed fear of Convention related persecution[1].
[1] See Court Book at page 42 - 43
The Delegate refused to grant the applicant a Protection (Class XA) Visa on 6 February 2007. The applicant then lodged an application for review of that decision with the Refugee Review Tribunal on 6 March 2007. The applicant did not provide any further documentary evidence at the time of lodging the application. The Tribunal wrote to him on 19 March 2007 informing him that it had considered the material before it but was unable to make a favourable decision on that information alone.
Accordingly the Tribunal invited the applicant to attend a hearing to give oral evidence and present arguments. That hearing was scheduled to take place on 30 April 2007. The Tribunal wrote another letter to the applicant on 19 March 2007. That letter was intended to comply with the requirements of s.424A of the Migration Act. 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 information was sent out in an attachment to the letter covering a page and a half[2]. The Tribunal cancelled the hearing due to the fact that the applicant did not reply to the letter under s.24A of the Migration Act. The Tribunal affirmed the Delegate's decision on
16 April 2007. On 29 October 2007 in the Federal Magistrates Court Cameron FM made orders by consent quashing the Tribunal decision which had been handed down on 8 May 2007 and making an order in the nature of mandamus requiring the Tribunal to review the Delegate's decision according to law.
[2] See Court Book at page 56 - 58
The Tribunal wrote to the applicant on 7 November 2007 advising him that the applicant had been remitted to the Tribunal. The Tribunal wrote again to the applicant on 8 November 2007 and again on 16 November 2007 inviting him to attend a hearing on 3 January 2008. The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language.
The applicant had previously submitted declarations from people attesting to the fact that they had seen the applicant practising Falun Gong and he also had provided some photographs. The applicant provided further testimonials to the Tribunal in support of his application. The Tribunal signed its decision on 4 February 2008 and handed that decision down on 11 March affirming a decision not to grant the applicant a Protection (Class XA) Visa.
A copy of the Tribunal decision record can be found in the Court Book at pages 97 through to 117 of the Court Book. In the decision record the Tribunal set out the applicant's claims and evidence including his original application, the earlier application for review and the applicant's evidence given to the Tribunal at the hearing on 3 January 2008. The Tribunal's summary of the evidence at the Tribunal hearing can be found at pages 101 through to 108 of the Court Book and appears under the following headings:
i)Tribunal Hearing - Presently Constituted
ii)Background
(a) Residence and Family in China.
(b) Education and employment.
iii)Claims for Protection.
(a) Practice in China.
(b) Exercises
(c) Motivation
(d) Books
(e) Third Eye
(f) Karma
(g) Xin Xing, the Falun and Energy.
(h) Practice in Australia.
(i) Political Activities
(j) Threat of Arrest
(k) Departure from China.
The Tribunal also considered independent evidence at pages 109 to 112 of the Court Book. The evidence related to Falun Gong and its practise in China and passports and exits procedures in China. The Tribunal's findings and reasons are set out on pages 113 to 117 of the Court Book. The Tribunal was satisfied that the applicant was a national of China based on the photocopy of the applicant's Chinese passport.
The Tribunal noted that the applicant claimed that he had started practising Falun Gong in China on 1 May 2004 with two friends who were Falun Gong practitioners. The Tribunal noted the applicant's claim that he never practised alone but initially practised at a friend's home and later in empty buildings. They would practise for nearly two hours including doing the five exercises.
The applicant claimed he had recruited four people to the Falun Gong cause. The applicant claimed he and his colleagues came to the attention of the authorities and three fellow practitioners were arrested in June 2006. He avoided arrest and went into hiding. The Tribunal had this to say about the applicant's claim of being arrested:
The applicant's evidence about his fellow practitioners being arrested and the authorities wanting to arrest him was confused and it shifted during the course of the Tribunal's questioning[3].
[3] See Court Book at page 113
The Tribunal was not satisfied that the applicant and his fellow practitioners came to the attention of the authorities or that the fellow practitioners were arrested or detained or that the applicant had gone into hiding. The Tribunal also considered the applicant's claims about his departure from China and referred to Independent Country Information about exit procedures from China. The Tribunal said:
In terms of exiting China according to the information provided by DFAT in September 2006, Chinese citizens will not be allowed to leave China in various circumstances, including if the person is suspected of a crime by the security officers; if they are involved I a civil case not yet completed; if they are undergoing re-education through labour or if after departing China the person "might cause danger to national security or cause extreme harm to national interests".
Further, according to the Country Information set out above the Chinese authorities check all outgoing passengers against the lists that operate at airports and are connected to a person's passport[4].
[4] See Court Book at page 114
In view of that information the Tribunal did not accept that the applicant had come to the adverse attention of the Chinese authorities as claimed. The Tribunal expressed difficulties with what it considers the changes in the applicant's evidence and found that the applicant's evidence had changed because he was not talking from experience but making his evidence up along the way. The Tribunal made an adverse finding about the applicant's creditability saying:
The above matters individually would not have led the Tribunal to make an adverse finding about the applicant's credibility, however, cumulatively they have led the Tribunal to conclude that the applicant was not a credible witness thus the Tribunal does not accept that the applicant was a Falun Gong practitioner in China or that he experienced any of the problems in China that he claimed[5].
[5] See Court Book at page 115
The Tribunal then went on to consider the applicant's conduct in Australia, in particular his claim that he started practising Falun Gong in Campsie in New South Wales in January 2007. The Tribunal asked the applicant questions about his practise in Australia and asked him about his knowledge of Falun Gong here. The Tribunal noted that the applicant demonstrated a good knowledge about the theory of Falun Gong, however, in view of the Tribunal's findings that the applicant did not practise Falun Gong in China and he was not a credible witness, the Tribunal was not satisfied that the applicant had a genuine commitment to Falun Gong. The Tribunal found:
As a result the Tribunal is not satisfied that the applicant has engaged in the conduct of practising Falun Gong in Australia and participating in anti CCP activities in Australia other than for the purpose of strengthening his claim to be a refugee. The Tribunal there finds that pursuant to s 91R(3) of the Act it is required to disregard that conduct[6].
[6] See Court Book at page 115
The Tribunal found the applicant did not have a well founded fear of persecution if he returned to China, the reasons being a Falun Gong practitioner, a member of a particular social group or any other convention reason and affirmed the decision not to grant the applicant a Protection (Class XA) Visa. The applicant then commenced proceedings in this Court seeking judicial review of that decision.
He filed an application and an affidavit in support on 2 April 2008. He has not filed any amended application nor has he filed any written outline of submissions. The first respondent filed an outline of submissions on 19 May 2008. The applicant did attend Court on the hearing of this matter on 26 May 2008 and made oral submissions with the assistance of an interpreter in the Mandarin language. The applicant said that because he could not afford a lawyer he was not legally represented, he did not understand anything in relation to the law.
He said that he had provided some evidence to the Refugee Review Tribunal about some activities that he was involved and he had provided some photographs. He said he had provided some letters in support. The applicant claimed that the Tribunal did not give weight to that evidence and refused his claim. He claimed that he had a religious belief in Falun Gong, but the Chinese government say that Falun Gong is a cult and do not allow people to practise it. He claimed that he would face persecution in China for practising Falun Gong in Australia.
For the respondent Minister, Ms Anniwell, solicitor, told the Court that the Tribunal did consider the applicant's evidence and referred specifically to it and did accept that they had some knowledge of Falun Gong. The Tribunal did find that the applicant had practised Falun Gong in Australia but disregarded that evidence under the provisions of s.1R(3) of the Migration Act. She submitted that the matter of weight was a matter for the Tribunal.
She referred to what she submitted appeared to be a sur place claim whereby the applicant claimed that he would face persecution on returning to China because of having practised Falun Gong in Australia. Ms Anniwell told the Court that the Tribunal considered that claim and found that the applicant did not have a well founded fear of persecution. She also told the Court that the applicant had not made that particular claim at the Tribunal hearing but it was only made at this hearing in the Court.
The applicant in reply said that he did not know why the Tribunal found that he had not practised Falun Gong in China. He claimed that he had practised for a period in China and initially when he applied for a protection visa he did not provide too much information. He said he did not know whether the Australian people would attack him for committing a crime in China. He was scared the Australian government would send him home as a criminal from China.
He said he had evidence but was too scared to submit it. He said that he had been arrested and detained due to his practise of Falun Gong. At the Tribunal hearing he briefly described how he had been arrested. He said that because of his activities here in Australia, if he was deported he would face more severe persecution in China. He claimed that for a reason, which he did not explain, that he had no choice and had not submitted all of his information to the Tribunal.
The Minister's written submissions claim that the applicant's first ground was largely meaningless in the absence of particulars. It will be recalled that that ground claimed that jurisdictional error had been made; the Tribunal took the cases which were against the applicant but did not take the successful case to support him. The Minister submits that the Tribunal decision was based upon its findings regarding the applicant's credibility and that finding on credibility was open to the Tribunal on the material before it and was not affected by jurisdictional error.
As to the second ground, namely a claim of denial of procedural fairness. The Tribunal did not give the applicant a letter to explain its doubts. The Minister submits that in the absence of particulars about the breach of procedural fairness that is claimed that ground could not be made out. The Minister submitted that the applicant was invited to a hearing of the Tribunal and attended that hearing at which he gave evidence.
He was afforded an opportunity to put his case. The Tribunal conducted its review according to procedural requirements required by the relevant provisions in force in Part VII Division of the Migration Act and there was no breach of procedural fairness apparent on the face of the Tribunal. The Minister submits that the application should be dismissed with costs. In dealing with the applicant's claims the applicant's first ground alleges a jurisdictional error in that the Tribunal:
Took the cases which are against me; they did not take the successful case to support me.
This ground appears to be a challenge to the weight that the Tribunal gave to the evidence before it. Provided that the Tribunal does consider the evidence the weight given to particular pieces of evidence is entirely a matter for the Tribunal. It is not for the Court to second guess the Tribunal on assessing matters of fact. See SZHCJ v Minister for Immigration and Multicultural Affairs (2007) FCA 205, 3, where Gyles J said:
Insofar as the Federal Magistrates Court is concerned it has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.
The Tribunal did consider the applicant's oral evidence which it set out in some detail and the applicant's written evidence. The written evidence was in the form of declarations or testimonials from people claiming to be Falun Gong practitioners and also in the form of photographs showing the applicant participating in various political activities. The Tribunal specifically referred to photographs and asked the applicant about them:
The Tribunal referred to the photographs that the applicant had submitted and asked him to tell the Tribunal about them. The applicant explained that one of the photographs was taken in January 2006 and one was taken in March in Chinatown where an event involved passing on the holy fire in Campsie. On another occasion he said that he travelled to Canberra. He said he also had photographs of his activities more recently. He said the first one was on 1 October involving activities in China and the second one depicted activities in Campsie which was the holy fire of human rights[7].
[7] See Court Book at page 106
The Tribunal also noted that the applicant had submitted declarations from Falun Gong practitioners stating that they believed the applicant was a Falun Gong practitioner[8]. In my view the Tribunal has considered the applicant's evidence. The Tribunal's summary of the applicant's oral evidence to the Tribunal at the hearing was comprehensive and detailed. The Tribunal has considered the applicant's photographs and documentary evidence, but in the end was not satisfied that he had made out his case.
[8] See Court Book at page 101
The Tribunal made it clear that it relied on its assessment of the applicant's evidence and on Independent Country Information which it set out. It is for the Tribunal to assess what weight it gives that evidence and in my view the applicant's first ground has not been made out. The applicant claims that procedural fairness had been denied to him and claims that the Tribunal did not give him a letter to explain its doubts.
It is difficult to see how a claim for lack of procedural fairness can be made out. The Tribunal wrote to the applicant inviting him to attend a hearing and give oral evidence. It invited him to provide further documentary evidence if he wished to do so. The Tribunal said in its letter of 16 November 2007:
Please use the form or attach additional information if there are any requests or new information you wish the Tribunal to consider. Any documents or written arguments sent to the Tribunal should be in English or be translated by a qualified translator[9].
[9] See Court Book at page 82 - 83
The Tribunal did consider the applicant's further evidence because the applicant did submit statements from two people who said they were Falun Gong practitioners and asserted to the fact that the applicant was a Falun Gong practitioner. The Tribunal considered that material and accepted that the applicant had been practising Falun Gong in Australia. The Tribunal accepted that the applicant had engaged in anti Chinese government activities in Australia as he claimed.
However, the Tribunal was not satisfied that the applicant had engaged in that conduct of practising Falun Gong in Australia and participating in anti Chinese Communist Party activities in Australia other than for the purposes of strengthening his claim to be a refugee. In my view that finding was open to the Tribunal on the evidence before it. This is a matter that has been decided on the basis of credibility.
The Delegate's decision was also decided on credibility. The applicant has not been taken by surprise in respect of any fresh issue that has been raised without warning. The applicant's claim that the Tribunal did not send him a letter to explain its doubts may perhaps be interpreted as a claim of a breach of s.424A of the Migration Act. In my view there has been no breach of s.424A. The Tribunal made its decision on the basis of:
i)The applicant's evidence to the Tribunal and
ii)Independent Country Information.
Both of those matters are excluded from the operation of s.424A(1) by s.424A(3) of the Migration Act. There is no breach of s.425 of the Migration Act. The Tribunal invited the applicant to attend the hearing in plenty of time and provided him with the services of an interpreter in the Mandarin language and the applicant was able to give evidence and submit written documents. In the end, however, the Tribunal did not accept the applicant's evidence which was entirely a matter for the Tribunal.
I am satisfied that no jurisdictional error has been made out. I accept the fact that the applicant was not legally represented at the proceedings but my reading of the Tribunal decision in the supporting material does not disclose any arguable case for any jurisdictional error, whether or not it was claimed by the applicant. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act.
Accordingly under sub-s.474(1) of the Act the Tribunal's decision is final and conclusive and is not subject to relief by way of orders in the nature of certiorari or mandamus. It follows that the application will be dismissed. There
There is an application for costs on behalf of the first respondent Minister. At the hearing, Ms Anniwell, solicitor who appeared for the Minister, submitted that if successful the Minister would seek an order for costs in the sum of $3000. I consider that to be appropriate.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 3 June 2008
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