SZLDR v Minister for Immigration

Case •

[2008] FMCA 541

•

2 May 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLDR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 541
MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – application for Protection (Class XA) visa – assessment and weight of country information – fact finding 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 10
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)
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
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 & Multicultural & Indigenous Affairs [2005] FCA 464
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407
NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Applicant: SZLDR
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2423 of 2007
Judgment of: Orchiston FM
Hearing date: 11 March 2008
Date of Last Submission: 11 March 2008
Delivered at: Sydney
Delivered on: 2 May 2008

REPRESENTATION

The Applicant appeared in person
Counsel for the Respondent: Mr J. Mitchell
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The application filed on 7 August 2007 is dismissed.

  2. The Applicant pay the First Respondent’s costs fixed in the sum of $4,800 payable within five (5) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2423 of 2007

SZLDR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

  1. 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) handed down on 3 July 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa (the visa) to the applicant.

Background

  1. The applicant was born on 25 June 1982 and was aged 24 years at the time of his application for the visa.

  2. The applicant claims to be a national of China and of Buddhist faith.

  3. The applicant arrived in Australia on 1 December 2006 on a Chinese passport issued in his own name.

  4. The applicant lodged an application for the visa on 5 January 2007 on the basis that he is a Buddhist and fears persecution in China (Court Book (CB) 28–30).

  5. On 3 February 2007 the delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).The delegate found that the applicant’s claims were “sparse, vague and completely lacking in detail” (CB 39), and the fact that he was able to obtain a passport to leave China legally, indicated that he was not of significant adverse interest to the Chinese authorities at that time.

Legislative framework

  1. 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.

  2. 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).

  3. Australia has protection obligations to a refugee on Australian territory.

  4. 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.

  5. 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

  1. On 5 March 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 41 – 44).

  2. The applicant appeared before the Tribunal on 31 May 2007 to give evidence and present arguments in relation to the issues under review.

The applicant’s claims and evidence (CB 69–71)

  1. The Tribunal summarised the applicant’s claims at the Tribunal hearing, including that:

    ·the Chinese Government’s intrusive control of religious activities violates the right to various freedoms, including the freedom of religion

    ·he has practised Buddhism for 6 to 7 years in China

    ·he fears that the Chinese Government will stop him from worshipping Buddha and there will be “conflict and trouble” and that his life will be in danger if he were to return to China

    ·he may be of interest to the Chinese authorities who are currently looking for him 

    ·he attended a Buddhist temple once every two weeks while living in China

    ·on one occasion when he was worshipping in China, the government authorities came to stop him and his fellow worshippers.  He was pushed and beaten and the temple was damaged but he was not detained or arrested

    ·his practice of Buddhism had effected his employment, though  he could not say how it had been affected.  He did not know if his family was in danger in China due to his practice of Buddhism as he had not asked them

    ·he confirmed that there are no other reasons why he would fear persecution from the Chinese authorities apart from his practice of Buddhism.

The Tribunal’s findings and reasons (CB 75–76)

  1. The Tribunal found that the applicant was not able to demonstrate any knowledge of the principles of Buddhism, nor was he able to give any detail about how he applied Buddhism in his daily life.

  2. It considered the applicant's oral evidence to be “short of detail” and lacking in “substance” (CB 75).  It found that the applicant was not able to give any detailed evidence as to why he was persecuted in China.

  3. The Tribunal did not accept that the applicant attended a temple once a fortnight in China, nor that Chinese government authorities had gone to that temple and stopped him and other Buddhists from worshipping there.

  4. It also did not accept the applicant’s evidence that he is of interest to the Chinese authorities, given that he had no difficulty in obtaining a Chinese passport in 2004 to come to Australia.

  5. The Tribunal found implausible the applicant’s claim that he had been unable to find any Buddhist temple to attend since moving to Sydney in 2006.  It did not accept that the applicant had been looking for Buddhist temples in which to worship in Australia.

  6. For these reasons, the Tribunal did not believe that the applicant was a Buddhist in China before coming to Australia.

  7. Given that the applicant had not made any claim to fear persecution for any other reason, the Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution for reasons of his religion or any Convention reason if he were to return to China now or in the foreseeable future.

The proceedings before this Court

  1. The applicant filed the application in this Court on 7 August 2007 setting out one ground of review of the Tribunal’s decision.

  2. The applicant appeared in person before the Court on 11 March 2008 with the assistance of a Mandarin interpreter.  Mr Mitchell of counsel appeared for the first respondent.

  3. The ground of the application was translated for the applicant, prior to the Court inviting him to say anything he wished to in regard to that ground, and generally.

Grounds of the application

  1. The ground of application states that:

    The Refugee Review Tribunal was infected by jurisdictional errors because to support its finding the Tribunal relied on all adverse country information.

  2. The Tribunal set out the country information which it had consulted (at CB 71-75).  In its Findings and Reasons, however, the Tribunal made only the one following reference to country information:

    From the independent country information, the Tribunal accepts that Buddhism is one of the five recognized religions in China and thus can be practised legally subject to certain State restrictions.  However, beyond asserting that he believed his temple was not legally recognised, the applicant could not give any further detail on why his Buddhist temple was not a State recognised or approved temple (CB 75).

  3. The Tribunal’s choice and assessment of country information concerning the official treatment of Buddhism in China, was purely a 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].

  4. In assessing that country information, the Tribunal was not required to accept claims by the applicant that were inconsistent with that independent evidence: NABD at [8]; Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451.

  5. Furthermore, what weight the Tribunal gave to any country information was ultimately a factual matter for it: NBKT 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 & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].

  6. Even if there was 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 at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137].

  7. Ultimately, however, the Tribunal’s findings in this case did not turn upon its assessment of the country information. Rather, the determinative issue for the Tribunal in this case was its assessment of the applicant’s credibility concerning his claim to be a Buddhist and to have suffered past persecution in China for that reason.  The Tribunal’s adverse findings in this regard were findings of fact par excellence, not open to review by this Court: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]):

  8. I consider that its adverse findings in this regard were open to the Tribunal on all the evidence and material before it.  It is not the function of this Court to interfere in the fact finding role of the Tribunal in these circumstances.  As relevantly observed by the Full Federal Court 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.

  9. Accordingly, Ground 1 of the application is rejected.

Conclusion

  1. 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.

  2. The application before this Court is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate:  Duncan Maconachie

Date:  2 May 2008

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0