SZLDV v Minister for Immigration
[2008] FMCA 466
•14 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLDV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 466 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 474; pt.8 div.2 |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481; 1996 185 CLR 259 Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SAAP v Minister for Immigration and Multicultural and Industrial and Ethnic Affairs (2005) HCA 24 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 |
| Applicant: | SZLDV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2440 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 14 April 2008 |
| Date of last submission: | 14 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2008 |
REPRESENTATION
| Applicant appeared in person with a Mandarin interpreter |
| Counsel for the Respondent: | Ms V. McWilliam |
| Solicitors for the Respondent: | Ms E. Baggett, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2440 of 2007
| SZLDV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 July 2007 and handed down on 3 July 2007.
The Applicant claims to be from the People’s Republic of China (“China”) and a practitioner of Falun Gong (“the Applicant”).
The Applicant arrived in Australia on 3 December 2006 having departed legally from Beijing Airport on a passport issued in his own name and a subclass 456 visa issued on 27 November 2006.
On 20 December 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
The Applicant provided a statement in support of his protection visa application in which he claimed that he feared persecution by the Chinese authorities by reason of his practice of and involvement in Falun Gong. The Applicant claimed that he commenced Falun Gong practice in private in 1997 for his health. When Falun Gong was banned in 1999 the Applicant claimed that he went to Beijing in search of answers as to the true reason for the banning of Falun Gong by the government. The Applicant claimed that he continued to practice Falun Gong in secret and in 2006 he and others were arrested, beaten and tortured by police for three days. The Applicant claimed his wife paid a bribe for his release and he paid a large amount of money for his passport.
On 3 February 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate noted that the Applicant did not provide any detail or evidence in support of his claims and was therefore not satisfied that the Applicant “would be of any interest to the authorities in the reasonably foreseeable future if he were to return”.
On 8 March 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further written material in support of the review application. On 3 July 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 8 August 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
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.
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 political 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 persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal decision
On 29 March 2007, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 1 May 2007 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.
On 1 May 2007, the Applicant gave evidence before the Tribunal in which the Applicant expanded upon his written claims. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal noted the claims made by the Applicant in support of his protection visa application. The Tribunal identified with particularity the expansion of those claims made by the Applicant to the Tribunal at the hearing. The Tribunal noted exchanges it had with the Applicant about his family life; his practice of Falun Gong; his arrest and release in China; his relationship with the Public Security Bureau (“PSB”); injuries to his hand that he claimed to have received from police; and his employment in China, including his relationship with his employers.
The Tribunal also noted matters of concern that it put to the Applicant arising from his evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard.
The Tribunal found the Applicant not to be a truthful or credible witness. The Tribunal found that the Applicant’s oral evidence at the hearing was inconsistent. The Tribunal found the Applicant’s knowledge about Falun Gong and its exercises to be lacking. In particular the Tribunal found that the Applicant was not able to perform the basic exercises and noted that the Applicant did not claim to have practiced Falun Gong regularly. The Tribunal noted that the Applicant had not participated in Falun Gong activities since coming to Australia and rejected the Applicant’s explanation as to why.
The Tribunal comprehensively rejected the Applicant’s claims of being a Falun Gong practitioner in China, that he practiced Falun Gong exercises or that he associated with other Falun Gong practitioners. The Tribunal rejected the Applicant’s claims of participation in a demonstration in Beijing, detention, torture, investigation and questioning. The Tribunal was not satisfied that any injury sustained by the Applicant to his hand was as a result of a beating he received in detention. The Tribunal rejected the Applicant’s claims of being monitored by and being required to report to, the PSB.
The Tribunal was not satisfied that the Applicant was “ever a Falun Gong practitioner, or that he was ever perceived as one”.
The Tribunal found that if the Applicant were to return to China now or in the reasonably foreseeable future there was not a real chance that he would face persecution because of any involvement with Falun Gong or for any other Convention-related reason.
The Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court, although he had the assistance of a Mandarin interpreter. The Applicant has participated in the Panel Advice Scheme.
The Applicant confirmed that he relied on the grounds of an amended application filed on 26 November 2007.
The grounds of the application are expressed to be as follows:
“1. The Tribual did not consider my application for protection according to law. The Tribunal had bias towards me when considered my application.
2. The Tribunal refused my application based on assumption.
3. The Tribunal failed to consider my application in accordance with S.424A of the Migration Act 1958.”
Attached to the amended application was a two page document expressed to be grounds. However, the document is more in the nature of submissions relating to s.424A. It is in a form often seen by this Court and refers to SAAP v Minister for Immigration and Multicultural and Industrial and Ethnic Affairs (2005) HCA 24 and Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27. It is not a document that is helpful to the Applicant in that it does not seek to identify information that may have been a part of the Tribunal’s reasons for affirming the decision under review or any other breach of s.424A of the Act and the law is out of date.
Each of the grounds was interpreted for the Applicant and he was invited to make submissions in support of each ground and in support of his application generally.
Ground 1 – Bias
The Applicant’s allegation of bias is unsupported by particulars or evidence.
When the Court asked the Applicant what he meant by this ground, the Applicant replied that what he had said to the Tribunal had not been accepted. In particular, the Applicant complained about the Tribunal’s rejection of his evidence of an injury to his hand allegedly sustained by him whilst in detention.
The Applicant submitted that the Tribunal assumed his injury occurred at work rather than in accordance with the Applicant’s evidence. However, the Tribunal noted in its reasons that it put to the Applicant that his injury had occurred as a result of an industrial accident at work. The Tribunal noted that this “would explain his time off work, his position being kept open for him, and the company’s generosity in sending him on a delegation to Australia shortly after his return to work”. The Tribunal noted the Applicant’s response that this was not the case.
Those adverse findings were open to the Tribunal on the evidence and material before it and for which it provided reasons. The Applicant’s submissions to this Court do no more than cavil with the adverse findings of the Tribunal. Such disagreement with the Tribunal’s findings otherwise invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481 at 491; 1996 185 CLR 259 at 272).
Otherwise, a fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. Further, the mere fact of adverse findings does not give rise to an inference as to the state of mind of the decision maker “before and whilst the matter was under consideration, nor of pre-judgment of the issues that fell for decision” (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
Accordingly, ground 1 is not made out.
Ground 2 – Assumption
This ground was unsupported by particulars or evidence.
The Applicant repeated his submission in support of ground 1 about the Tribunal’s failure to accept his evidence as to how he received the injury to his hand and that the Tribunal had assumed the injury had occurred at his workplace. This issue is dealt with at paragraph 30 above in these Reasons.
As stated above in these Reasons, the Tribunal’s rejection of the Applicant’s evidence and its adverse findings were open to it on the evidence and material before it and for which it provided reasons.
Accordingly, ground 2 is not made out.
Ground 3 – Section 424A
Ground 3 is not supported by particulars or evidence.
A fair reading of the Tribunal’s decision does not disclose any information that formed part of the Tribunal’s reasons for affirming the decision under review that enlivened the obligations of s.424A(1) of the Act.
The Tribunal’s rejection of the Applicant’s evidence and its adverse findings were based on inconsistencies in the Applicant’s evidence at the hearing and the Applicant’s lack of knowledge of Falun Gong in circumstances where he claimed to have been practicing since 1997. The Tribunal identified those inconsistencies that gave rise to its adverse credit findings. The Tribunal’s findings on credit are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons. As the First Respondent submitted “It is well established that the Tribunal’s opinion (in this case that the applicant’s oral evidence was inconsistent and implausible) does not constitute ‘information’ within the meaning of the Act, so as to enliven s.424A of the Act: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18]”.
Accordingly, ground 3 is not made out.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; put to the Applicant matters of concern about his evidence and noted the Applicant’s responses. The Tribunal made findings based on the evidence and material before it. Those findings of fact, including adverse credibility findings, were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to those findings and made conclusions based on the findings made by it on the evidence and material before it.
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 proceeding before this Court is dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 14 April 2008
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