SZLCX v Minister for Immigration
[2008] FMCA 504
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLCX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 504 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – merits review not function of judicial review. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.5, 36, 65, 91R, 91S, 424A, 474 |
| Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NADR v Minister of Immigration & Multicultural &Indigeno/us Affairs [2003] FCAFC 167 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | SZLCX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2343 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 6 March 2008 |
| Date of Last Submission: | 6 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 30 July 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,200 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2343 of 2007
| SZLCX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 26 June 2007 and notified to the applicant by letter dated 26 June 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.
Background
The applicant was born on 18 June 1961 and was aged 46 years at the time of his application for a protection visa.
The applicant claims to be a national of China.
The applicant arrived in Australia on a Chinese passport issued in her own name on 29 September 2001 and departed on 26 December 2001. She again arrived in Australia on a Chinese passport issued in her own name on 4 August 2003 and applied for a protection visa on 19 February 2007.
The applicant claimed in her protection visa application that she was persecuted in China for being a Falun Gong practitioner; that police warned her not to practise, but she continued to do so; that police came again about a week later, arrested two of her friends and forbade the group to practise; and that she would be dismissed from her job if police found she were to continue her practice of Falun Gong.
On 2 March 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (Court Book CB 67-74) (see Legislative framework).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 6 March 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 88-91).
On 15 March 2007, the Tribunal sent a letter to the applicant inviting her to appear before it to give oral evidence and present arguments (CB 105-106). On 21 March 2007 the Tribunal sent a letter rescheduling the hearing date (CB 124-125), and subsequently agreed to a request from the applicant for a postponement of the hearing (CB 136-137).
The applicant attended and gave evidence at the hearing on 25 May 2007. Two other witnesses also gave evidence at the hearing at the applicant's request.
Subsequent to the hearing, the Tribunal sent a letter to the applicant on 30 May 2007 pursuant to s.424A of the Act (CB 213-217).
On 13 June 2007 the applicant's adviser replied to the s.424A letter (CB 219-222).
The applicant’s claims and evidence (CB 260 – 272)
The Tribunal summarised the applicant’s claims in the protection visa application. It further summarised the applicant’s claims at the Tribunal hearing, including that:
·the applicant had been persecuted and had been dismissed from her job in China due to practising Falun Gong
·the applicant was practising Falun Gong in 2003 before she was questioned by police. Two male members of the group with whom she practised were taken away and the police questioned her and other members of her group. The applicant stated that at this time her brother told her to come to Australia as the police would come back for her
·after her arrival in Australia, the applicant claimed that she was told that the police in China wanted to take her to the police station for questioning
·the applicant came to Australia on a three month visitor’s visa to look after her sister-in-law who later returned to China. The applicant claims she would have no family, no job and no security if she were to return to China
·the applicant started practising Falun Gong in Australia in December 2004 at Parramatta and later at Hurstville and Darling Harbour.
The two witnesses appearing in the applicant’s case gave evidence at the Tribunal hearing about the applicant’s involvement in Australia in Falun Gong and her attendance at Falun Gong meetings.
The Tribunal’s findings and reasons (CB 272–274)
The Tribunal handed down its decision on 5 July 2007.
The Tribunal found, in consequence of identified inconsistencies (which were set out in the s.424A letter) between the applicant’s version of events in her written statement, her Departmental interview and in her evidence at the Tribunal hearing, that:
· the applicant is not a Falun Gong practitioner.
· the applicant is not a credible witness
· she sought to mislead the Tribunal both in regard to her Falun Gong claims and activities, and her claims that she was warned or subsequently wanted for questioning in China.
In reaching these conclusions, the Tribunal did not accept the applicant’s claims in her response to the s.424A letter that when she was detained in Villawood Detention Centre she was not in a good frame of mind and her memory was greatly affected.
The Tribunal also found that the evidence given by the applicant’s two witnesses at the hearing to be inconsistent with the applicant's evidence as to how often she attended Falun Gong meetings in Australia. The Tribunal found that they were not credible witnesses.
The Tribunal accepted that the applicant showed some knowledge of Falun Gong, but was not satisfied that she had engaged in Falun Gong activities in Australia otherwise than for the purpose of strengthening her claim to be a refugee.
For these reasons, the Tribunal found there was not a real chance the applicant would suffer serious harm from her stated or perceived practice of Falun Gong if she returned to China.
The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution if she returned to China for reasons of being a Falun Gong practitioner, a member of a particular social group, or for any other Convention reason, now or in the foreseeable future.
The proceedings before this Court
The applicant filed the application in this Court on 30 July 2007 setting out 3 grounds for review of the Tribunal’s decision.
The applicant appeared in person before the Court on 6 March 2008 with the assistance of a Mandarin interpreter. Ms Kantaria appeared for the first respondent.
The applicant was invited to say anything she wished to in support of each of the grounds of review, and generally, after each of the grounds was translated for her.
Grounds of application
The grounds of the application are:
(1)In regard to the Tribunal's conclusion that I am not credible, I believe that the Tribunal did not take into account the pressure, stress and memory problem I was suffering when I was first detained at the Villawood detention centre and also the fact that I was experiencing menopause, as these had affected my ability to correctly recall what had happened.
(2)The Tribunal thought that I didn’t give a consistent description of the site where I practised Falun Gong in saying it was the Town Hall. The truth is to my knowledge, I think the site where I practise Falun Gong, the council building, is part of the library and they both belong to Parramatta Council and my fellow practitioners call the site “Parramatta Library”. Therefore, I don’t think there is no inconsistency in this regard, and thus the Tribunal should not have the conclusion.
(3)The Tribunal used my answer to a question in a copy of the Departmental interview “Is there any reason why you cannot return to that country?” and I answered “No” and the Tribunal used this as a reason that I might have sought to mislead the Tribunal regard to me claim to fear harm by them. But the Tribunal didn’t take into account of the circumstances under which I was asked this question. When I was answering this question, it was after my being detained at the police station for a whole day and night and as soon as I was transferred to the detention centre, I was asked these questions by the telephone interpreter (on the mobile phone) we used on that day was a Cantonese speaking interpreter and I couldn’t understand her, so I just gave “yes” and “no” answers to all questions without thinking at all.
Ground 1 of the application
The applicant argues that in regard to the Tribunal's conclusion that she was not a credible witness, the Tribunal did not take into account the pressure, stress and memory problems she was suffering at the relevant time.
The Tribunal expressly referred to and considered the applicant’s response to the s.424A letter which raised these matters. The Tribunal stated in this regard that:
The adviser submitted the applicant had instructed her that when she was detained in Villawood, she was not in a good frame of mind and her memory was greatly affected. She had not been sleeping or eating; she was going through menopause and was extremely distressed to find herself in Villawood and that it was only after she had spoken to her friend, [named], in China, and asked him to obtain a copy of her medical file that she started remembering exactly when events happened.
The Tribunal has considered this submission however it does not accept it.
The Tribunal set out clear reasons for rejecting this explanation, including inconsistencies between the applicant’s oral evidence at the Tribunal hearing and her written statement; the applicant’s negative response at the Departmental interview when asked if there were any reasons why she could not return to China; its lack of satisfaction with the applicant’s explanation for this response; and the delay in the applicant applying for a protection visa in Australia (from 2003, and then only made after she was detained in 2007).
I consider that the Tribunal’s rejection of the applicant’s explanation on this matter was open to it on all the evidence before it. Merely because the applicant disagrees with the Tribunal’s factual conclusion in this regard does not amount to an error of law. The Tribunal’s conclusions that the applicant was not a witness of credit on this and other matters were findings of fact par excellence:
“If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.” (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67]).
It is no part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. As the Full Federal Court observed in NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]:
The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review.
Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact (Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137]).
For the above reasons, I therefore detect no jurisdictional error in this regard.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application
The applicant asserts that the Tribunal incorrectly found that she did not give a consistent description of the site at Parramatta where she claimed to have practised Falun Gong in Australia.
The Tribunal in its s.424A letter, (under “ISSUE 2”), raised various matters concerning her alleged practice of Falun Gong in Australia, including its location at Parramatta as follows (CB 216):
…it may be open to the Tribunal to find your statement at hearing in relation to where you practised is inconsistent with your written statement (that is at the hearing you stated the [Parramatta] library whereas in your written statement it was the [Parramatta] Town Hall).
The applicant’s response to the s.424A letter stated that (CB 222):
In respect to where the study sessions were held, [the applicant] advises that they were held at the side of the library in the council building. She was unsure whether the building belonged to the library or to the council. She has subsequently referred to both the library and the council building in describing where she studied. However she is referring to the same place.
The Tribunal however did not make any finding in regard to whether the site of the applicant’s alleged involvement in Falun Gong was at the Parramatta Library or the Parramatta Town Hall.
Rather, it referred to a series of other matters in reaching its conclusion that the applicant had not regularly attended the Falun Gong study sessions in Australia, as claimed, and that in relation to those Falun Gong sessions which the applicant had attended, the Tribunal was not satisfied that “she had not engaged in those activities otherwise than for the purpose of strengthening her claim to be a refugee.” The Tribunal stated in this regard (at CB 273) that:
The applicant stated that she started practising [Falun Gong] in Australia in December 2004. She stated after 2-3 months she started to study in the side wing of the Parramatta Library on the first floor, she went there in early 2005, she did not go very frequently, she went once a month on Friday. She stated she went once a month for 3 to 4 months. She stated at Parramatta there were also exercises between 6.30 and 7.30 before the study session. The Tribunal finds the applicant's answers as to how often she went to the Falung Gong sessions in Parramatta in January through to April is inconsistent with how often [a named Tribunal hearing witness] stated she went. The adviser has stated the applicant had stated that [the named witness] was confused because he only started going with her to the study sessions in June 2005 and the applicant should not be discredited on the basis of this confusion. The Tribunal does not accept the submission. That is because [the named witness] did not state at the hearing he was confused. The inconsistency leads the Tribunal to conclude [the named witness] and the applicant are not credible and she has not attended the study sessions as claimed. It also leads the Tribunal to conclude the applicant and [the named witness] do not regularly attend study sessions and in relation to the sessions the applicant has attended, the Tribunal finds it is not satisfied the applicant did not engage in those activities otherwise than for the purpose of strengthening her claim to be a refugee. This means that pursuant to section 91R(3) the Tribunal disregards such conduct.
The exact location of the Falun Gong activities in Parramatta therefore had no bearing on the ultimate decision made by the Tribunal.
Accordingly, Ground 2 of the application is rejected.
Ground 3 of the application
The applicant argues that the Tribunal used her answer to a question in the Departmental interview without taking into account the circumstances under which she was asked this question.
The Tribunal, however, in its s.424A letter expressly raised this matter, quoted the question and answer from the Departmental interview, pointed out its relevance, and requested a response (CB 217). The applicant’s response stated that:
[The applicant] instructs us that she had just been arrested and was in shock and had answered without thinking.
The Tribunal expressly considered this explanation by the applicant and rejected it for the following reasons:
…the Tribunal has also considered the Departmental interview which was conducted with the applicant on 2 February 2007 and in which the Department recorded the applicant answered "No" when asked were there any reasons why she could not return to her country. Given the applicant has not sought to disown the answer, the Tribunal accepts it as an accurate record of what she said. The applicant has submitted she was in shock and answered without thinking. The Tribunal does not accept this submission. The Tribunal does not accept the answer is consistent with someone who was a genuine Falun Gong practitioner as claimed. Neither does the Tribunal accept that the answer is consistent with someone who held a well founded fear of being persecuted by the Chinese authorities at that time.
The applicant now puts forward the further claim that her inability to understand the Cantonese interpreter was a reason for her “just [giving] ‘yes’ and ‘no’ answers to all questions without thinking”.
She has not sought, however, to put the transcript of the evidence from the Tribunal hearing before the Court, nor any other evidence, in support of this claim. There is nothing on the face of the Tribunal decision record which discloses that the applicant raised any complaint about the interpreter at the Tribunal hearing. Indeed, in contrast, the above quoted passage from the Tribunal decision record demonstrates that the sole reason proffered by the applicant on that occasion for “answer[ing] without thinking” was because “she was in shock”.
I consider that the Tribunal’s rejection of the explanation put forward by the applicant on this matter was open to it on all the evidence before it. Again, the applicant’s complaint in this regard seeks that the Court engage in impermissible merits review which, as stated above, is not the function of this Court.
Accordingly, Ground 3 of the application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 24 April 2008
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