SZKTN v Minister for Immigration
[2007] FMCA 1975
•19 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1975 |
| MIGRATION – Whether the Tribunal exercised its powers carefully – review of merits not available – Tribunal not required to make its own enquiries – illogicality not a ground for review. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZKTN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1842 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 19 November 2007 |
| Date of last submission: | 19 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A. Mansour of Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1842 of 2007
| SZKTN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 23 April 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
Background
On 15 December 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed to fear persecution in China on the basis of his practice of Falun Gong (Court Book “CB” 27).
The application was refused by a delegate of the first respondent on 20 January 2007 (CB 32) and by the Tribunal on review on 23 April 2007 (CB 62). The matter is now before this Court pursuant to an application for judicial review filed on 12 June 2007.
Issues for determination
The issues before the Court are as follows:
·Whether the Tribunal exercised its powers carefully;
·Whether the Tribunal failed to understand the applicant’s claims;
·Whether s.424A(1) of the Migration Act 1958 (Cth) (“the Act”) was complied with; and
·Whether the Tribunal should have made its own enquiries.
The application
In his application, the applicant set out the following grounds (numbering added):
Ground one
The involved an error of law that:
(a)the decision involved an important exercise of the power conferred Migration Act an [and] Regulations.
(b)the respondent did not carefully consider the information which is in favour of the applicant.
(c)there was no evidence or the other materials to justify the making of the decision.
Ground two
(a)I am a citizen of China. If I back to my country, I will be risk of suffering persecution; within the meaning of the 1951 Convention relating to the status of Refugees and the 1967 protest relating to the status of Refugees.
(b)Member of Refugee Review Tribunal failed to understand my claims and failed to consider relevant matters, further particulars to be provided.
(c)The Tribunal failed to comply with its obligations under s.424A of the Migration Act 1958 (Cth). Information that was the reason or part of the reason for the Tribunal affirming its decision included information contained in his protection, which information was not provided to the applicant in accordance with s.424A.
(d)Member of the Tribunal failed to understand my claims and failed to consider relevant matters, further particulars to be provided.
(e)The respondent refused to grant my protection visa without any proper grounds and proper investigation.
(f)I sincerely hope that Australia government could protect me because I would be jailed if I return to my original country PR Chine.
(g)The decision made by Tribunal is illogical.
Findings of the Court in relation to the grounds in the application
Ground 1(a) asserts that “the decision involved an important exercise of the power” conferred by the Act and Regulations. This assertion provides no ground for review and is rejected.
Ground 1(b) alleges that the Tribunal did not carefully consider the information favourable to the applicant. The decision sets out a detailed consideration of the evidence and the Tribunal’s reasons for not accepting much of it. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]: “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”. The findings of the Tribunal were properly open to it. Ground 1(b) is rejected.
Ground 1(c) alleges that there was not evidence or other materials to justify the making of the decision. The Court agrees with the following statement by the Tribunal in another matter:
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.
The applicant did not establish his case to the satisfaction of the Tribunal. It was properly open to the Tribunal on the material before it to not accept many of the applicant’s claims including that it did not accept that the applicant was a Falun Gong practitioner in China or in Australia (CB 71.9). As that was the only claimed ground of persecution, the Tribunal was justified in deciding to affirm the decision of the delegate. Ground 1(c) is rejected.
Ground 2(a) alleges that the applicant will suffer the risk of persecution if he goes back to China. The Tribunal made a finding of fact that it did not accept that there is a real chance that the applicant will be persecuted if he returns to China (CB 71.10). The applicant is therefore seeking to review a finding of fact which is not a function of this Court. Ground 2(a) is rejected.
Ground 2(b) alleges that the Tribunal Member failed to understand the claims and failed to consider relevant matters. No particulars have been provided and no submissions have been made to establish this ground. The applicant was invited to make submissions to the Court but declined. The Tribunal set out the applicant’s claims and its reasons for rejecting them. It has not been shown that the Tribunal failed to consider relevant matters. Ground 2(b) is rejected.
Ground 2(c) alleges a failure to comply with s.424A of the Act. No particulars are given of any information that it is alleged should have been set out in a s.424A letter. In reaching its decision, the Tribunal relied on country information and the applicant’s oral evidence – each of these is covered by the exceptions in s.424A(3)(a) and (b) respectively. A breach of s.424A has not been established. Ground 2(c) is rejected.
Ground 2(d) alleges a failure to understand claims and to consider relevant matters. This ground is the same as 2(b) and is rejected for the reasons set out thereunder.
Ground 2(e), insofar as it is the same as ground 1(c), is rejected for the reasons set out thereunder. The applicant complains that the Tribunal did not conduct a proper investigation. The Court agrees with the following statement by the Tribunal in another matter:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Court refers also to the quoted passage in paragraph 8 above.
The Court agrees with the following submissions in another matter:
The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.
As evidenced in its decision, the Tribunal examined the material before it thoroughly. There is no requirement for the Tribunal to make the applicant’s case for them, or for the Tribunal to make its own enquiries: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]. Ground 2(e) is rejected.
Ground 2(f) makes an allegation that the applicant will be “jailed” if he returns to China. This contention is contrary to the finding of fact by the Tribunal that there is not a real chance that the applicant will be persecuted if he returns to China (CB 71.10). Such a finding was open to the Tribunal: Lee (ante). This ground seeks a review of a finding of fact that is not available. It is rejected.
Ground 2(g) complains that the decision is “illogical”. As stated in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [32]:
…the Full Court has held that want of logic does not constitute an error of law and cannot constitute a ground for judicial review: Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, 420-422; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [22]-[29].
In any event, the Court does not accept that the decision is illogical. Ground 2(g) is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: M Giang
Date: 26 November 2007
0
17
1