SZLAR v Minister for Immigration
[2008] FMCA 210
•14 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLAR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 210 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – s.426(1)(b) does not require the Tribunal to summarize or paraphrase s.426(2) or to render it into plain English – the effect of the seven day notice period contained in s.426(2) was satisfied by giving a specific date, by which notice might be given, which was seven days after the deemed receipt of the s.425A notice – the wording of the s.425A notice, especially in combination with the “Response to hearing invitation” form, met the requirement that the applicant be advised that any request for a witness to be called be in writing – s.426(2) does not require an applicant to be notified that a request for the Tribunal to take evidence from a witness, if made more than seven days after notification of the entitlement to make such a request, would have an outcome different to one which is made within seven days after notification of that entitlement – review of merits of visa application is not available in judicial review proceedings. |
| Migration Act 1958, ss.425A, 426, 441A, 441C, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2089 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 14 February 2008 |
| Date of Last Submission: | 14 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr G. Kennett |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2089 of 2007
| SZLAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was a Falun Gong practitioner. He alleges that while in China he was unable to practise Falun Gong freely and fled to Australia for this reason. The applicant further alleges that he has taken part in a number of Falun Gong activities since arriving in Australia.
The applicant claims to fear persecution in China because of his Falun Gong practice.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 16 November 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed
Background facts
The facts alleged in support of the applicant’s application for a protection visa are set out on pages 4 – 11 of the Tribunal’s decision (Court Book (“CB”) pages 121 – 128).
Protection visa application
In his protection visa application, the applicant made the following claims:
a)in March 2003 the applicant went shopping at a food market when “an old woman”, a vegetable seller, ran after him to return a fifty Yuan note he had dropped. When the applicant expressed his appreciation the woman told him that she was a Falun Gong practitioner and asked the applicant to remember “that Falun Dafa is good and Truthfulness, Compassion and Tolerance are good”.
b)the next month the applicant returned to the market with his wife and again met the old woman. When they were talking the applicant suffered “a heart stroke”. The old woman followed the applicant home and watched him take his medicine. The applicant told the old woman that his illness began in 1988 and that a remedy could not be found in either western or traditional Chinese medicine. The old woman told the applicant that she had previously suffered from an illness but was cured after she began practising Falun Gong. In 2001 however, she was discovered by the Chinese authorities and sentenced to a labour reform camp for one year. She has since restrained herself from public practice;
c)at his wife’s request, the applicant asked the old woman to teach him Falun Gong. The old woman agreed and spent two months teaching the applicant the exercises. During this period he suffered another “stroke”, however, by reciting “Falun Gong is good!”, the pain went away;
d)Falun Dafa has since become the applicant’s “life belief” and he fled China in order to practise freely; and
e)the applicant bribed the relevant authorities to obtain a passport under a false name as he feared it would be difficult for him to obtain a passport under his real name.
Application for review
In a letter attached to the applicant’s application for review, he further claimed that:
a)since arriving in Australia he
i)has joined a Zhuan Falun study group which meets every Wednesday;
ii)has participated in rallies and demonstrations in support of those who have quit the Communist Party and to protest the persecution of Falun Gong adherents; and
iii)practises Falun Gong on weekends with other adherents at Campsie; and
b)the applicant’s wife told him that the police and cadres in China visited their home and warned him not to get involved in anti-revolutionary activities. His wife fears that he will be persecuted.
The applicant also submitted to the Tribunal a photograph depicting him holding a banner in what appeared to be a Falun Gong rally.
Tribunal hearing
At the hearing before the Tribunal, the applicant made the following additional claims:
a)he was afraid to stay in one place and sometimes practised Falun Gong at his parents’ house;
b)he came to Australia with a fellow practitioner from his village (“Mr L”). At present, they live together and practise Falun Gong together (the Tribunal noted at CB 122 that Mr L had also applied for a protection visa and that the two men’s cases had a number of similarities);
c)the head of the police station told the applicant’s cousin that the applicant was on a blacklist and that the police were going to search his home; and
d)he distributed pamphlets in China on the virtues of Falun Gong.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant was not a reliable, credible or truthful witness, noting that:
i)his explanation for failing to raise with the Minister’s department the claims he subsequently made at the hearing (being that he thought the claims in question were not important) was completely unsatisfactory in light of the detailed account the applicant provided of how he became a Falun Gong practitioner. The applicant was given the opportunity following the hearing to specifically address the Tribunal’s concerns in this regard but failed to do so, and the Tribunal formed the view that the applicant would not have failed to mention these matters if in fact they had occurred;
ii)the applicant’s oral evidence regarding his residential and work history was inconsistent with the information he had provided in his application for a protection visa and his explanation for these inconsistencies was unsatisfactory;
iii)the applicant’s oral evidence regarding his association with Mr L contradicted the latter’s evidence about the two and their knowledge of each other, which cast serious doubt on the applicant’s version of events;
iv)a comparison of the written information provided by the applicant and the information provided by Mr L to the department strongly suggested that the same person was responsible for completing their separate applications, however, their evidence in relation to the person responsible for completing their forms was contradictory, indicating that the applicant had been less than forthright and truthful in this regard;
v)given the applicant’s association with Mr L, it would have been reasonable to expect him to call Mr L as a corroborative witness and the fact that he did not indicated that Mr L’s evidence would not have supported the applicant’s claims;
vi)given the applicant’s claim that he was blacklisted by the authorities, the Tribunal did not consider plausible the applicant’s claim that the authorities had waited until December 2006, some five months after his departure, to visit the applicant’s house for the first time;
vii)the totality of the applicant’s oral evidence showed a propensity to exaggerate and tailor his evidence in a manner which achieved his own purpose;
b)having regard to the applicant’s lack of credibility, the Tribunal found that the applicant’s knowledge of Falun Gong and his ability to carry out the exercises may have been acquired in Australia for the purpose of strengthening his case. Therefore, pursuant to s.91R(3), the Tribunal disregarded the applicant’s conduct while in Australia; and
c)the Tribunal did not accept that the applicant practised Falun Gong in China or that he was of any interest to the Chinese authorities for this reason.
Proceedings in this Court
The grounds of the application were pleaded in the following terms:
(1)The Tribunal failed to exercise its jurisdiction because it failed to comply with sections 425A and 426 of the Migration Act 1958 (“the Act”).
This allegation was particularised by reference to s.425A which is linked to s.426 in that s.426 requires a s.425A notice to, amongst other things, contain a notification to the effect of s.426(2).
The allegation was further particularised as being that the notice did not adequately notify the effect of s.426(2) in the following respects:
a)the requirement that a notice to the Tribunal (that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice) be in writing, and
b)that there would be different consequences if such a notice was given to the Tribunal outside the seven day time limit provided by s.426(2).
In his submissions today the applicant raised additional matters which were, in essence, an invitation to the Court to reconsider the merits of his application for a protection visa.
Failure to comply with s.426(1)(b)
Section 426(1)(b) provides:
(1)In the notice under section 425A, the Tribunal must notify the applicant:
(a) …
(b) of the effect of subsection (2) of this section.
Section 426(2) provides:
The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
It should be noted that s.426(1)(b) does not require the Tribunal to summarise or paraphrase s.426(2) or to render it into plain English. The requirement is that the effect of the subsection be communicated to an applicant. The elements of the subsection are:
a)within seven days of being notified of the invitation to attend a hearing;
b)in writing;
c)the applicant may tell the Tribunal if he or she wants the Tribunal to obtain oral evidence from a named person.
Seven days’ notice
Based on my reading of the amended application it is not strictly necessary to consider whether the seven day notification requirement was satisfied because the amended application makes reference to the “What is a hearing?” document, and the absence from that document of the reference to the seven day time period.
Even so, it is appropriate to note that the seven day notice requirement was satisfied.
In this regard, the Tribunal’s s.425A notice is reproduced at CB 77-78 and Exhibit A. Both reproductions of that notice show that the s.425A letter, addressed to the applicant at the address given by him in his application to the Tribunal, was dated 9 March 2007 and was dispatched by post by the Tribunal on that day. I find that the letter was sent to the applicant on 9 March 2007.
In relation to the dispatch of a s.425A notice, s.441A(4) provides that a s.425A notice may be posted by prepaid post within three working days of the date of the document to the last address for service provided to the Tribunal by an applicant. By dispatching a s.425A notice on 9 March 2007 to the address given by the applicant in his application to the Tribunal, the Tribunal satisfied the requirements of this section.
Section 441C(4) provides that if a document is dispatched by the method prescribed in s.441A(4) from one place in Australia to another place in Australia, it is taken to have been received seven working days after the date of the document. Because the Tribunal complied with s.441A(4) the notice is taken to have been received by the applicant seven working days after the date which appears upon it, namely 20 March 2007. The seven day period referred to in s.426(2) reflects the 27 March 2007 cut off date referred to in the s.425A notice.
Given the deeming effect of s.441C(4), it would not be practical or fair to applicants for the Tribunal to write in its s.425A notices that an applicant had “seven days after being notified”, or words to that effect, within which to make a request that the Tribunal take evidence from a named person. The reference by the Tribunal in its s.425A notice in this case to a specific date which equates to the seven day period in s.426(2) is practical, fair and advises the applicant of the actual effect of that element of the subsection.
In writing
As to the requirement that any request that the Tribunal call a witness be made in writing, the Tribunal’s s.425A notice asked the applicant, if he wished to make such request, to complete the “Response to hearing invitation” form. The first page of that form is reproduced at CB 79 and that first page, together with the reverse page, are reproduced amongst the documents which became Exhibit A. Significantly, question 2c on the first page of that form says:
Do you want the Tribunal to take oral evidence from any witnesses?
Next to this question were two boxes, one which is marked “yes” and one which is marked “no”. Underneath that question appears the following sentence:
If yes, you must fill in the details on the back of this form.
The back page of the form sets out a series of matters to be addressed by an applicant in support of his or her request for the Tribunal to call a particular witness. I do not think it can be said that the second page of the “Response to hearing invitation” form performs any function for the purpose of s.426(2) which is not more effectively performed by the first page of that document.
The purpose of s.426(1)(b) is that the applicant be advised that any request for a witness must be in writing. The Tribunal letter alone and especially in combination with the “Response to hearing invitation” form where question 2c says at the back of the form “must be completed”, in my mind, meet the requirement that the applicant be notified that any request for a witness must be in writing.
Request for evidence from a named person
The final element of s.426(2) is that the applicant must be notified that he can tell the Tribunal if he wants it to take evidence from a named person. By reason of the way in which the amended application is drawn, I do not believe it is necessary to consider this issue. But I will say that, for the reasons given in relation to the requirement that a request for a witness be in writing, the effect of this element of s.426(2) was notified to the applicant and no breach of s.426(1)(b) is demonstrated in respect of it.
Different consequences if notice given outside the 7 day time limit provided by s.426(2)
The second element of the particulars appearing in the amended application and to which reference has been made above, is that the notice did not adequately notify the applicant that any notice to the Tribunal requesting a witness be called would have different consequences if given to the Tribunal outside the seven day time limit.
I do not read the Act to contain such a requirement. The requirement is that the applicant be notified that he has seven days in which to make his written request, not that other things will or will not happen if such a request is made outside that period. For this reason, I do not consider that this asserted ground of review demonstrates any basis upon which the Tribunal’s decision might be set aside.
Merits review
Today the applicant made submissions as to the merits of his application for a protection visa. The Court’s powers in judicial review proceedings such as these do not extend to a reconsideration of the merits of that application. This is a role reserved for the Tribunal as the finder of fact and it is the Court’s role to ensure that the Tribunal follows proper process and operates according to law. For these reasons, the matters raised by the applicant in his submissions today do not disclose a basis upon which the Court may set aside the Tribunal's decision.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 28 February 2008
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