SZLDD v Minister for Immigration
[2008] FMCA 329
•20 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLDD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 329 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – whether Tribunal properly considered country information – whether applicant’s claims properly considered – findings of fact not the function of judicial review. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 474 |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZLDD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2359 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 29 February 2008 |
| Date of Last Submission: | 29 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2008 |
REPRESENTATION
| Applicant appeared in person |
| Counsel for the Respondent: | Ms Crittenden |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application filed on 31 July 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,300 payable within four (4) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2359 of 2007
| SZLDD |
First 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 31 May 2007 and handed down on
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 6 May 1961 and was aged 46 years at the time of her application for a protection visa.
The applicant claims to be a national of China, and a Falun Gong practitioner.
The applicant arrived in Australia on 14 September 2006.
The applicant lodged an application for a protection visa on 2 February 2007 (Court Book (CB) 1–28).
On 24 February 2007 the delegate refused to grant the applicant’s protection visa (CB 31-40) on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 26 March 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 41–44).
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 2 April 2007, the Tribunal sent a letter to the applicant inviting her to appear before it on 1 May 2007 to give oral evidence and present arguments (CB 47-48).
The applicant’s claims and evidence (CB 27)
The applicant claimed to fear persecution in China because of her belief and practice of Falun Gong. She claimed to have been dismissed from her job, arrested, jailed, and beaten by the police. She claimed that she came to Australia because “there [was] no way out” for her if she remained in China.
The Tribunal’s findings and reasons (CB 68-69)
The Tribunal did not believe that the applicant was a Falun Gong practitioner in China because of serious deficiencies in her knowledge of Falun Gong. In consequence, the Tribunal did not accept that the applicant had been dismissed from her factory employment for practising Falon Gong, nor that she had been arrested and detained for practising Falun Gong, nor that she would practise Falun Gong on return to China. Accordingly:
as the applicant had not claimed any other reason for fearing to return to China except her practice of Falun Gong, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason if she returns to China.
The proceedings before this Court
The applicant filed the application in this Court on 31 July 2007 setting out 3 grounds for review of the Tribunal’s decision.
The applicant appeared in person before the Court on 29 February 2008 with the assistance of a Mandarin interpreter. Ms Crittenden appeared for the first respondent.
Grounds of application
The grounds of the application are:
(1)the Refugee Review Tribunal [the Tribunal] failed to consider the current situation in China
(2)the decision of the Tribunal is otherwise contrary to law
(3)the Tribunal has not adequately taken into consideration the applicant’s claims.
Ground 1 of the application
The Tribunal clearly considered the current situation in China by reference to independent country information, as set out in its Statement of Decision and Reasons at CB 66-67. That information indicated that Falun Gong has been outlawed in China since October 1999, with restrictive measures implemented by some government departments banning its practice.
The independent country information cited by the Tribunal was thus not unfavourable to the applicant.
In any event, the Tribunal’s choice and assessment of relevant country information is a purely factual matter for it: (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81] and [84]). Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137]).
What weight the Tribunal gave to any country information, is ultimately a factual matter for it: (NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]).
Ultimately, however, the Tribunal’s findings in this case did not turn upon its assessment of the country information, rather on its assessment of the applicant’s credibility and its adverse findings in this regard.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application.
The applicant has not provided any particulars as to how the decision of the Tribunal is said to be “otherwise contrary to law”.
A fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of the claims made by the applicant; explored those claims with her at the hearing; identified the determinative issues and gave her sufficient opportunity to give evidence and make submissions on those issues at the hearing; and noted in detail the applicant's responses (CB 65-66). The Tribunal further had regard to independent country evidence (CB 66-67); and then made findings based on all the evidence and material before it (CB 68-69).
I consider that its findings of fact were open to it on the evidence and material before it; that it provided well-articulated and sufficient reasons for its decision; that it applied the correct law to those findings; and reached its conclusions based on the findings made by it. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
Accordingly, Ground 2 of the application is rejected.
Ground 3 of the application
The applicant has not provided any particulars as to how she says the Tribunal has not adequately considered her claims.
Ground 2 of the application above, has already traversed relevant matters concerning the Tribunal’s consideration of the applicant’s claims and I rely on my reasoning therein.
Having considered all the relevant matters, the Tribunal ultimately rejected the applicant’s claim because it did not believe that she was a Falun Gong practitioner in China, given serious deficiencies in her knowledge of Falun Gong. The Tribunal’s rejection of the applicant’s claims on this basis is not to say that it did not properly consider her claims.
The Tribunals’ adverse findings as to the applicant’s credibility on this matter were findings of fact par excellence, not open to review by this Court. As relevantly observed in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]):
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.
Also, 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.
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: 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 at [10]. Furthermore there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia (1998) 197 CLR 510 at 560 [137].
Accordingly, Ground 3 of the application is not made out.
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 thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 20 March 2008
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