SZLDX v Minister for Immigration
[2008] FMCA 475
•14 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLDX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 475 |
| 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; 474; pt.8 div.2 |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SZIFS v Minister for Immigration and Multicultural Affairs [2006] FCA 1574 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 |
| Applicant: | SZLDX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2448 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 |
| Solicitors for the Respondent: | Ms S. Kantaria, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2448 of 2007
| SZLDX |
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 29 June 2007 and handed down on 10 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 21 March 2007 having departed legally from Shenyang Taoxian International Airport on a passport issued in her own name and a visitor visa.
On 30 March 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 30 March 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 4 April 2007, the Department received an application for a protection visa.
In her protection visa application, the Applicant claimed that she feared persecution by the Chinese authorities and claimed that they forced her to give up Falun Gong “by violence” and that as a result of her practice of Falun Gong she could not find employment.
On 26 April 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 to substantiate her claims.
On 28 May 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 29 June 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 9 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 4 June 2007 the Tribunal wrote to the Applicant informing her 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 19 June 2007 to give oral evidence and present arguments. The Applicant attended that hearing and gave oral evidence.
The claims made by the Applicant before the Tribunal and the Tribunal’s decision are accurately summarised in the written submissions of the First Respondent as follows:
“Applicant's Claims
5. In her protection visa application, the applicant claimed that:
a) she is a Falun Gong practitioner;
b) she was forced to give up Falun Gong and was not allowed to work. Consequently, she left China;
c) if she were to return to China, she would be forced to give up Falun Gong and would be mistreated/harmed by the Chinese Government and the police[1].
[1] CB 82-83
6. At the Tribunal hearing, the applicant claimed that:
a) in June 2005, she started to practice Falun Gong. At that time it was banned[2];
[2] CB 187.2
b) she was brought to the attention of the Chinese authorities because her co‑practitioner had been reported to the police by her neighbour. In August 2005 she, along with six members of her Falun Gong group, was arrested[3]. The male practitioners were beaten. She was scared, but was not beaten[4];
[3] CB 187.3
[4] CB 186.8
c) she was "sacked" by her employer when he was informed that she had been practicing Falun Gong[5];
[5] CB 186.8
d) when she stayed at home, she was subjected to surveillance by the police. As a result, she stayed at her mother's house[6];
[6] CB 186.8
e) in the period after her arrest and prior to her departure in March 2007, she practiced Falun Gong secretly[7];
f) she did not seek refugee status in Japan because the Japanese discriminated against the Chinese. Nor did she apply for refugee status in Thailand and Hong Kong in 1999[8];
g) in Australia, she practiced Falun Gong in Auburn. In April 2007, she went to Melbourne to "glorify FA"[9];
h) if she were to return to China, she would be mistreated/harmed by the Chinese government and police. The police have a list of names of Falun Gong practitioners[10].
Title Tribunal's Findings
7. The Tribunal's basis for affirming the delegate's decision was because it found that "the applicant was never a Falun Gong practitioner". It was not satisfied that:
a) the applicant and her group were arrested in China;
b) she was "sacked";
c) the police subjected her to surveillance and harassed her on the phone.
8. In relation to the applicant's practice of Falun Gong in Australia, the Tribunal was not satisfied that the applicant had engaged in these activities otherwise than for the purpose of strengthening her claims to be a refugee (see s. 91R(3) of the Migration Act 1958 ("Act"). The Tribunal rejected the applicant's claim that if she were to return to China, she would be restricted from practicing Falun Gong.”
[7] CB 181.4
[8] CB 186.5
[9] CB 187.5
[10] CB 187.2
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant has participated in the Panel Advice Scheme.
The Applicant that she relied on the grounds identified in her initiating application filed on 9 August 2007.
The grounds of the application are expressed to be as follows:
“1. The Tribunal and the primary decision maker erred in failing to recognize the principle of non-refoulment contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (the Convention).
2. The Tribunal and the primary decision maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant’s claimsof refugee status and the Tribunal failed to consider whether any other motives could ground a finding of lake of bona fides.
3. The Tribunal and the primary decision maker erred in finding that the general attack on the applicant’s credit as an element of a failure to make a bona fide consideration of the application.
4. The Tribunal member and the primary decision maker erred in their construction of the Migration Regulation 1958 (the Act) Part 8.”
Each of the grounds was interpreted for the assistance of the Applicant and she was invited to make submissions in support of each of the grounds and in support of her application generally. The Applicant confirmed that she had filed no evidence or written submissions in support of her application.
Ground 1
The Applicant was asked by the Court what was meant by ground 1. The Applicant replied that she did not know and had forgotten.
Article 33(1) of the Convention imposes an obligation upon contracting States not to expel a person found to be a refugee within Article 1A(2) to a territory in which there is a threat to the person’s life or freedom for a Convention reason.
Ground 1 would appear to be misconceived in that a decision has been made that the Applicant is not a refugee in accordance with the Convention.
Accordingly, ground 1 is rejected.
Ground 2
Ground 2 is not supported by particulars or evidence. The Applicant was asked by the Court what was the evidence which she contended was not considered by the Tribunal. The Applicant replied that the Tribunal had not accepted her evidence of practicing Falun Gong in Australia even though she had photographs in support of her claim to have taken part in Falun Gong activities in Australia and a witness.
The Tribunal noted the Applicant’s claims about her association with Falun Gong in Australia and had regard to photographs provided by the Applicant of her involvement in Falun Gong activities in Sydney and Melbourne. However, the Tribunal found the Applicant not to be a credible witness on the basis of her lack of knowledge of Falun Gong. Further, the Tribunal placed no weight on the Applicant’s witness in support of her assertion of being a Falun Gong practitioner in Australia on the basis of the witness’s lack of knowledge of Falun Gong.
The Tribunal found that the Applicant participated in Falun Gong activities in Australia “solely to create a sur plus claim”. In the circumstances, the Tribunal was not satisfied that the Applicant had engaged in Falun Gong conduct in Australia otherwise than for the purposes of strengthening her claim to be a refugee, and was therefore mandated not to have regard to such conduct pursuant to s.91R3 of the Act.
The Tribunal was not satisfied that she and her group were arrested in China in 2005, nor that she was sacked or subjected to police harassment and surveillance. The Tribunal found that the Applicant “is not a Falun Gong practitioner and has never been a Falun Gong practitioner”. Therefore, the Tribunal rejected the Applicant’s claims that if she were to return to China “she would be restricted from practicing Falun Gong, she would not be employable at an appropriate level if she continued to practice, the police would arrest her, and she would be harmed and mistreated by the authorities.”
Based on those findings the Tribunal was not satisfied that the Applicant faces a real chance of persecution should she return to China now or in the foreseeable future and was not satisfied that the Applicant has a well-founded fear of persecution “for any Convention related reason”.
Those findings and conclusions were open to the Tribunal on the evidence and material before it and for which it provided reasons. The Tribunal applied the correct law to its findings in reaching its conclusions.
A fair reading of the Tribunal’s decision does not support the Applicant’s contention that the Tribunal did not consider all the evidence put before it. Nor does a fair reading of the Tribunal’s decision support the Applicant’s contention that the Tribunal acted with a closed mind or proceeded on the basis that it was seeking reasons to decide against the application.
Allegations of bias and lack of good faith are serious allegations and must be distinctly made and clearly proved (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17). 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 (SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
Otherwise, ground 2 is no more than a disagreement with the findings and conclusions made by the Tribunal. Such a complaint seeks merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1).
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 is not supported by particulars or evidence. The Applicant made no submission in support of ground 3.
Ground 3 appears to contend that the Tribunal did not make a “bona fide consideration of the application” because it made adverse credibility findings in respect of the Applicant.
The credibility findings are a matter par excellence for the Tribunal (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). At the heart of the Tribunal’s rejection of the Applicant’s claims was the Applicant’s lack of knowledge about Falun Gong. As stated above in these Reasons, the findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
A fair reading of the Tribunal’s decision does not support the Applicant’s contention that the Tribunal’s decision was not made bona fide simply because it made adverse findings in respect of the Applicant’s credibility.
Accordingly, ground 3 is not made out.
Ground 4
Ground 4 is not supported by particulars, evidence or submissions. The Applicant was asked by the Court what were the errors of construction made by the Tribunal in respect of Pt.8 of the Act. The Applicant replied that she did not know.
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims made by the Applicant; explored those claims with the Applicant at a hearing; had regard to the Applicant’s evidence and the evidence of her witness; identified independent country information to which it had regard; made findings based on the evidence and material before it and for which it provided reasons. As stated above in these Reasons, the 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 reached conclusions based on its findings.
Accordingly, ground 4 is not made out.
Conclusion
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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