SZLDQ v Minister for Immigration - [2007] FMCA 2058

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLDQ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2058

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People's Republic of China claiming to fear persecution for reasons that he is a Falun Gong practitioner – no jurisdictional error – privative clause decision.

Migration Act 1958 (Cth), ss.474(1), 474(2)

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

Applicant:

SZLDQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2417 of 2007

Judgment of:

Scarlett FM

Hearing date:

13 November 2007

Date of Last Submission:

13 November 2007

Delivered at:

Sydney

Delivered on:

13 November 2007

REPRESENTATION

Counsel for the Applicant:

Nil

The Applicant:

Appeared in person

Counsel for the Respondents:

Mr T. Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00 and I will allow five (5) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2417 of 2007

SZLDQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Applicant

The applicant is a citizen of the People’s Republic of China. He has brought an application for a review of the decision by the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was signed on 13^th June and handed down on 3^rd July 2007.
The applicant arrived in Australia on 7^th January 2007 and applied a protection (Class XA) visa on 2^nd February 2007. That application was supported by a statement in which he claimed to be a practitioner of Falun Gong. He claimed to have been sent to gaol several times and he claimed to have been dismissed by his work unit as a result of having been arrested and detained. He claimed a fear of returning to China because he fears being persecuted by the Chinese government.
On 24^th February 2007, a delegate of the Minister refused to grant the applicant a protection visa. The applicant then applied to the Refugee Review Tribunal on 26^th March seeking a review of the delegate's decision. That application was not accompanied by any supporting material. The Tribunal wrote to the applicant on 13^th April inviting him to appear before the Tribunal to give oral evidence and present arguments on 6^th June 2007 at 9:30 am.
On 6^th June the applicant appeared before the Tribunal and gave oral evidence with the assistance of an interpreter in the Mandarin language. The applicant claimed that he had been sent to gaol several times and did not wish to return to China because he was afraid of being persecuted by the Chinese government. He claimed that some of his friends had been sent to gaol and he had heard one of them had been tortured to disability and he told the Tribunal that terrible things would happen to him.
He claimed to have been dismissed from his work unit and was investigated by the local police. He stated that when the police made sure that he was a Falun Gong practitioner they sent to a "camp" for three months. He also stated that in 2002, he was detained by the local police for one month and that is why he wanted to leave China.
The applicant told the Tribunal that he likes it in Australia and that there is more freedom; he added that he liked the “Falun Gong thing”. He claimed that he became a Falun Gong practitioner because it made him feel better health-wise. He also told the Tribunal that he never did the Falun Gong exercises in China but he would like to do them here in Australia.
He claimed to have flicked through Falun Gong books and stated that what he got out of the books was a "spiritual and a belief thing"[1].

The Tribunal handed down its decision on 3^rd July 2007. The Tribunal decision record appears at pages 67 through to 75 of the Court Book. The findings and reasons can be found on pages 71 to 75.
[1] See Court Book page 68
The Tribunal was satisfied that the applicant is a national of China and based that finding on the copy of the applicant's passport which had been produced at the hearing. However, the Tribunal was not satisfied that the applicant was a Falun Gong practitioner or that he had participated in any Falun Gong activities in Australia. The Tribunal found that the applicant's claims lacked credibility.
The Tribunal did not accept that the applicant was dismissed from his work unit or sent to a camp for three months or was of any interest to the Chinese authorities because of his practice of Falun Gong. Accordingly, the Tribunal did not accept that the applicant had a well founded fear of persecution for convention reason in China, and it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention.

Accordingly, the Tribunal affirmed the decision not the grant the applicant a protection (Class XA) visa.
The applicant commenced proceedings in this Court on 6^th August 2007. In his application he seeks the following orders:
(1)Of writ of certiorari quashing the decision of the Refugee Review Tribunal;
(2)An order requiring the Refugee Review Tribunal to reconsider the matter according to law; and
(3)Costs.
He has set out three grounds in his application which are as follows:
(1)The Tribunal failed to consider the whole my claims;
(2)It is not reasonable for the Tribunal not to accept that I was dismissed from my work here and was detained by the Chinese authorities;
(3)The Tribunal did not adequately consider that I would put into danger if I went back to China.
The applicant did not file any written outline of submissions, but he attended Court and made oral submissions. In answer to a question from the Bench, about the first ground why the Tribunal had failed to consider the whole of his claims, the applicant said that the Tribunal did not consider the fact that he was detained. It was put to the applicant, however, the Tribunal referred to that claim in the final paragraph. The Tribunal said:
Second, the Tribunal found his evidence in relation to his dismissal and arrest to be vague, implausible and lacking in credibility. The applicant stated at the hearing that he was dismissed from his work unit after being detained. Initially, he claimed that he was detained because he was with Falun Gong practitioners in a protest. He then changed his evidence by stating that it was not a protest and that he was arrested while sitting with other practitioners. When asked what exactly he was doing at the time, he said he was just sitting on the floor. When asked why the police would arrest him if he was just sitting down, he said he did not know.
The applicant's failure to provide meaningful details in relation to these significant claims and present any satisfactory reason as to why the police would arrest him in the circumstances he has described, casts doubt on the credibility of his claims[2].
[2] See Court Book page 72
The applicant did not make any submissions in respect of the second and third grounds of his application which appear not to contain, in his description of jurisdictional error, but rather go to a challenge of the Tribunal's factual findings. The second and third grounds in particular go to what is known as merits review, which is not available on judicial review of Tribunal decisions.
I read the written outline of submissions prepared by counsel for the respondent Minister, Mr Reilly. In that outline Mr Reilly points out that the Tribunal had found that the applicant was not credible and the Tribunal had noted the applicant's near complete ignorance of Falun Gong and the “vague and unconvincing” nature of his oral evidence.
In considering this decision I am of the view that this matter was decided by the Tribunal on the basis of its findings about the credibility of the applicant's evidence. The Tribunal set out in its findings and reasons why it formed this negative view of the applicant's credibility.
The Tribunal pointed out that the applicant knew very little about Falun Gong exercise, and, in fact, the only exercise that he claimed to know was sitting down and taking a deep breathe. The Tribunal also noted the applicant's evidence about the fact that he had not learned or had done any Falun Gong exercises in China but he would like to do it in Australia.
The Tribunal was not convinced about the applicant's account of having been arrested and detained, and the Tribunal generally noted the applicant's vague, inconsistent and unconvincing evidence.
In short, this is a matter which was decided entirely on the basis of an adverse finding of credibility. I note that in the delegate's decision the delegate formed a similar view of the applicant's credibility, the delegate said:
I consider that several aspects of the applicant’s claims lack credibility. I am of the opinion that the applicants’ claims have been fabricated[3].
[3] See Court Book page 37
Credibility is a finding of fact. Indeed, as counsel for the Minister has pointed out, the finding of credibility is the finding of fact par excellence (see re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[4]). The Tribunal's findings were open to it on the evidence before it, and the Court cannot review the merits of the Tribunal decision (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang[5]).
[4] (2000) 168 ALR 407 [67]
[5] (1996) 185 CLR 259 [272]
I am mindful of the fact that the applicant is not legally represented in these proceedings. I have read through the Tribunal decision and supporting documents independently of either the applicant's application and the Minister's submissions in order to ascertain whether any other jurisdictional error may appear. I am satisfied that there is no jurisdictional error, whether claimed by the applicant or not.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined in sub-s. 474(2) of the Migration Act. Under subsection (1) a privative clause is final and conclusive, and it is not subject to orders in the nature of certiorari and mandamus, which the applicant claims.
It follows, therefore, that the application must be dismissed.
There is an application for costs on behalf of the respondent Minister. The amount sought is $5,000.00 which accords with the scale provided by the Federal Magistrates Court Rules. The applicant has been wholly unsuccessful in his claim and, in my view; this is an appropriate matter for a costs order. The applicant claims not to have any money but that of itself is not a reason not to make an order for costs.
It is a matter to be taken into account in allowing time to pay and I propose to allow time to pay.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 5 December 2007