SZKTC v Minister for Immigration
[2007] FMCA 1355
•9 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1355 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner but resiling from that claim at the Tribunal hearing – Tribunal making adverse credibility findings against the applicant – no reviewable error found – application dismissed. |
| Migration Act 1958, ss.424A, 425A, 441A |
| NADR v Minister for Immigration [2003] FCAFC 167 SZBYR v Minister for Immigration [2007] HCA 26 |
| Applicant: | SZKTC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1811 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 9 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr J Dooley Sparke Helmore |
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 $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1811 of 2007
| SZKTC |
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 13 April 2007 and was apparently handed down on 8 May 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant’s protection visa claims and the Tribunal’s review of delegate’s decision are summarised in the Minister’s written submissions filed on 31 July 2007. I adopt as background for the purposes of this judgment paragraphs 2 through to 10 of those submissions:
The applicant’s claims were contained in a statutory declaration attached to his application for a protection visa (court book (“CB”) 27-28). He claimed that he was a Falun Gong practitioner, and that he was dismissed by his employer because he practised Falun Gong (CB 27.4). He claimed that officers of the Public Security Bureau (“PSB”) often came to his home, beat him, took him to the detention centre, brainwashed and attacked him (CB 27.5). On 5 March 2005 the PSB quarrelled with his son and his son was beaten to death by two police officers (CB 27.5). The hospital refused to issue a death certificate so the applicant was not able to appeal to the Courts. The police forced the applicant to write a letter indicating that he would not ask the PSB to “pay the legal responsibility” (CB 27.6). In November 2006 he changed address but was found by the PSB, and they came to his home every two or three days, beat him and destroyed his furniture (CB 27.7). He could not live a normal life (CB 27.7).
Tribunal hearing
On 14 March 2007 the Tribunal invited the applicant to a hearing on 12 April 2007 (CB 45-46). This letter was validly sent by post[1] to the address for service nominated by the applicant in his application for review (CB 43.6). The applicant attended the scheduled hearing (CB 49.3).
[1] Sections 425A(2)(a), 441A(4) of the Migration Act 1958 (Cth) (“the Migration Act”)
At the hearing, the applicant essentially resiled from his claim to be a Falun Gong practitioner. The Tribunal’s decision record indicates that:
(a)the applicant said he did not know much about Falun Gong, he practised it a little but did not understand it (CB 65.9, 66.1);
(b)he only watched his wife practise Falun Gong (CB 66.1);
(c)he came to Australia and wanted to apply for a visa but knew he did not have “significant” reasons so he relied on Falun Gong (CB 66.1);
(d)in response to a question asking whether the applicant considered himself to be a Falun Gong practitioner, he said he did not think he “should be one” (CB 66.2);
(e)the applicant had forgotten all the main sets of Falun Gong exercise and their names (CB 66.2).
The applicant made a further claim at the hearing, namely that his house was demolished by the authorities and he received inadequate compensation (CB 66.3). He tried to appeal but the security people had a conflict with his son, and in March 2005 his son was hit on the head and died one night later (CB 66.4). The applicant tried to protest against the authorities regarding his son’s death, but was detained at a police station on several occasions, once for fifteen days and on another occasion for thirty days (CB 66.5). He took his legal matter to Beijing but the case was still undecided, and he did not know the current position of the case (CB 66.6).
Tribunal’s findings
The Tribunal rejected the applicant’s claims in relation to Falun Gong because of his lack of knowledge about Falun Gong and his own admission that he did not think that he should be considered a Falun Gong practitioner (CB 67.3).
The Tribunal accepted certain aspects of the applicant’s claim in relation to his son’s death, namely that the authorities demolished the family’s home, inadequate compensation had been paid, there had been a conflict with the authorities about this matter, the applicant’s son died after an altercation with the authorities in March 2005 and that the family had taken legal action but the case had not been resolved (CB 67.6).
However, the Tribunal rejected the applicant’s claims of harassment arising from these claims. In particular, it did not accept that:
(a)he was forced to write a letter stating that the PSB would not be asked to take responsibility for his son’s death;
(b)he was detained after attempting to protest;
(c)his family was found in November 2006 when they moved, officers went to their home every two or three days, destroyed their furniture and assaulted them;
(d)he could not live a normal life; and
(e)any legal action taken by the family had been improperly delayed or subjected to any improper interference by the authorities (CB 67.7-67.8).
The Tribunal rejected these claims after considering the evidence as a whole and on the basis of its concerns over the applicant’s credibility (CB 67.6). The applicant’s admission that he provided information in his Statutory Declaration that was not entirely accurate but was included for the purpose of applying for a protection visa led the Tribunal to have “serious [sic] about other claims made by the applicant” (CB 67.5). The Tribunal also noted that the applicant’s evidence in relation to the legal proceedings was “very vague, lacked details… and was somewhat evasive” (CB 67.9). The Tribunal’s adverse credibility findings were open to it and are not amenable to judicial review.[2]
The Tribunal found further that any harm suffered by the applicant was not related to a Convention ground, and that the applicant was not the member of a particular social group (CB 68.3-68.8). These additional findings were strictly unnecessary given the Tribunals earlier findings regarding the applicant’s credibility but were factual findings open to the Tribunal and reveal no error.
[2] NADR v Minister of Immigration [2003] FCAFC 167
These proceedings began with a show cause application filed on 8 June 2007. The applicant asserted actual notification of the Tribunal decision on 17 May 2007. I find that the application was filed within time. The applicant filed an amended application on 20 July 2007.
He told me today that he relied on both applications.
I received as evidence the court book, filed on 22 June 2007. I did not receive the applicant’s affidavit filed on 8 June 2007. The applicant’s statement in it that he does not want to return to China is uncontroversial and does not need to be proven. The decision of the Tribunal attached to the affidavit is also reproduced in the court book.
The original application appears to assert breaches of s.424A of the Migration Act. I asked the applicant what information he asserts the Tribunal failed to invite comment on pursuant to that section. He identified his own protection visa claims. No breach of s.424A is thereby established. I agree with and adopt for the purposes of this judgment paragraphs 11 through to 13 of the Minister’s written submissions:
The application seeking judicial review contains two grounds. The first ground asserts that the Tribunal failed to explain, in the form of a document, the reason why the Tribunal considered particulars of the information relevant to the matter. This ground appears to allege a breach of s.424A of the Act. The applicant’s admission that his Falun Gong claims were included to strengthen his application was provided by him to the Tribunal for the purposes of his review. It therefore fell within the ambit of s.424A(3)(b) of the Act and no obligation to provide particulars of that admission arose pursuant to s.424A(1) of the Act. The Tribunal’s subjective appraisals of the applicant’s credibility and its failure to be satisfied of the applicant’s claims were also not “information” for the purposes of s.424A(1).[3] The Tribunal specifically noted that it did not rely on any inconsistencies between the statutory declaration and the oral evidence in making its findings (CB 67.5). Even if it had done so, no obligation to provide particulars of the statutory declaration to the applicant would have arisen as it was not information which was part of the reason for affirming the delegate’s decision.[4]
The second ground asserts that the Tribunal failed to invite the applicant to comment on the information although no particulars or details are provided to identify the relevant “information”. The Tribunal validly invited the applicant to a hearing (see paragraph [3]), and provided ample opportunities for the applicant to comment on the issues arising under review (CB 65.7-66.9).
The Tribunal rejected the applicant’s claims because it was unable to reach the state of satisfaction required by the Act.[5] Its findings of adverse credibility were open to it and are not amenable to judicial review.[6] The Tribunal’s decision is free from error and the application ought to be dismissed with costs.
[3] SZBYR v Minister for Immigration [2007] HCA 26 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [18].
[4] SZBYR, op cit at [17].
[5] SJSB v Minister for Immigration [2004] FCAFC 215 per Ryan, Jacobson and Lander JJ at [15]-[16].
[6] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA) per McHugh J at 423 [67].
The amended application simply recites the applicant’s protection visa claims. Those are beyond the scope of this proceeding.
The applicant has failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $2,700. Scale costs in this instance would be $5,000. The applicant said that he could not pay any costs but any impecuniosity is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $2,700.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 August 2007
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