SZLED v Minister for Immigration
[2008] FMCA 506
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLED v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 506 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error merits review not function of judicial review – whether claims of persecution properly considered – whether breach of procedural fairness. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.5, 36, 65, 91R, 91S, 424A, 425, 474 |
| SZBRR v Minister for Immigration & Multicultural Affairs – NSD 1851 of 2006 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 SZKLG v Minister for Immigration & Citizenship [2007] FCAFC 198 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | SZLED |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2452 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 5 March 2008 |
| Date of Last Submission: | 5 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Y. Shariff |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 9 August 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,900 payable within four (4) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2452 of 2007
| SZLED |
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) 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 visa to the applicant.
Background
The applicant was born on 2 March 1963 and was aged 39 years at the time of her application for a protection visa.
The applicant arrived in Australia on 24 June 2002 on a Chinese passport issued in her own name.
The applicant lodged an application for a protection visa on 9 July 2002 on the basis that her husband was a political prisoner in China due to his activities (which she became aware of after he was arrested and she was questioned by police). Following this questioning, the applicant claimed to have fled China and that if she were to return she could be used as a tool against her husband (Court Book (CB) 23–25). She later claimed to fear persecution in China because she practised Falun Gong (CB 129).
On 2 August 2002 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 20 August 2002 the applicant applied to the Tribunal (the first Tribunal) for review of the delegate’s decision (CB 43–46).
On 29 January 2007, the Federal Court, by consent, quashed the decision of the first Tribunal and ordered the Refugee Review Tribunal to reconsider the matter (SZBRR v Minister for Immigration & Multicultural Affairs – NSD 1851 of 2006)(CB 90–91).
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 5 April 2007, a differently constituted Tribunal (the Tribunal) sent a letter to the applicant inviting her to appear before it on 4 May 2007 to give oral evidence and present arguments (CB 96–97).
The applicant attended the hearing on 4 May 2007 (CB 128).
By letter dated 9 May 2007 the Tribunal wrote to the applicant pursuant to s.424A of the Act, inviting her to comment on the particulars of certain information upon which, subject to her response, it might draw an adverse conclusion (CB 112-113). The letter identified the following inconsistencies in, and between, the information contained in her application for a protection visa and the evidence she had subsequently given at the Tribunal hearing:
a)at the Tribunal hearing the applicant had advanced a ground for persecution (based on her practice of Falun Gong) which was entirely different to that advanced in her application for a protection visa (which claimed that she feared persecution by reason of her husband’s political activities);
b)the applicant made no claim (or reference) at the Tribunal hearing to her husband’s alleged imprisonment as a political prisoner or his alleged political activities, and instead gave evidence that her husband was caring for her daughter whilst the applicant was in Australia; and
c)at the Tribunal hearing the applicant gave evidence about her employment history which was inconsistent with that specified in her application for a protection visa.
The s.424A letter also informed the applicant that her claims might be regarded as a fabrication, that she might not be regarded as a truthful witness and that, as a result, she might not be granted a protection visa.
The Tribunal invited the applicant to provide comments by 1 June 2007. The applicant provided no response to the s.424A letter.
The applicant’s claims and evidence (CB 127–132)
The Tribunal summarised the applicant’s claims in the protection visa application (at CB 127–128). It further summarised the applicant’s claims at the Tribunal hearing, including that:
·before she came to Australia she had difficulty finding work in China due to being a Falun Gong practitioner. She had worked part time since 2001 and had not held a full time job since 1997
·she did not believe in the Falun Gong principles, she only practised it occasionally for the sake of her health
·in 1998 the Chinese Public Security Bureau (PSB) came to her house and detained and questioned her for three days after which she paid a fine. She was not detained again but was questioned again from time to time
·she was unable to work and members of her family were discriminated against due to her practising Falun Gong
·since moving to Australia she practises Falun Gong everyday in her backyard or in parks. She does not undertake any public practise of Falun Gong because she is worried about spies.
The Tribunal’s findings and reasons (CB 134–136)
The Tribunal made the following findings:
·that the applicant was not a truthful or credible witness.
·did not accept the applicant's claims that she faces persecution in China due to her husband’s political activities
·did not accept that the applicant faces a real fear of persecution for the reason of being a Falun Gong practitioner.
·did not accept that the applicant was a Falun Gong practitioner in China or Australia
·did not accept that the applicant was detained and questioned in China for the reason of being a Falun Gong practitioner
·that the applicant's knowledge of Falun Gong was superficial and lacked the depth of knowledge that would be expected of a Falun Gong practitioner
·the fact that the applicant left China without difficulty or restriction in 2002 and that subsequently, while in Australia, obtained a Chinese passport through the Chinese Consulate, to be inconsistent with her claim about being detained and questioned by the PSB in 1998 and her claim that she continued to be questioned and harassed by the PSB in relation to her practice of Falun Gong
For these reasons, the Tribunal found there was not a real chance that the applicant would suffer serious harm from her stated or perceived practice of Falun Gong and her husband’s activities if she were to return to China.
The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution if she were to return to China for reasons of being a Falun Gong practitioner, a member of a particular social group, or for any other Convention reason, now or in the foreseeable future.
The proceedings before this Court
The applicant filed the application in this Court on 9 August 2007 setting out 2 grounds for review of the Tribunal’s decision.
The applicant appeared in person before the Court on 5 March 2008 with the assistance of a Mandarin interpreter. Mr Shariff of counsel appeared for the first respondent.
Grounds of application
The grounds of the application are:
(1)The making of the decision was an improper exercise of the power conferred by the enactment on pursuance of which it was purported to be made.
(2)The decision did not properly consider that the applicant would be placed in danger if returned to P R China.
Ground 1 of the application.
The applicant has made a generalised assertion, providing no particulars as to how she says “the making of the [Tribunal] decision was an improper exercise of [its] power”.
I am satisfied in this regard that the Tribunal has identified the relevant law; understood the nature of the claims made by the applicant; explored those claims with the applicant at the hearing; identified the determinative issues; gave to the applicant a sufficient opportunity to give evidence and make submissions on those issues at the hearing; and closely noted the applicant’s responses.
I am further satisfied that, subsequent to the hearing, the Tribunal identified to the applicant in the s.424A letter clear particulars of its concerns that may be the reason, or part of the reason, for affirming the decision under review, including inconsistencies in the applicant’s evidence.
In this context, I accept the submission by the first respondent that the fact that the s.424A letter was sent to the applicant after the Tribunal hearing is not inconsistent with the operation of s.424A or s.425(1) of the Act: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; SZKLG v Minister for Immigration & Citizenship [2007] FCAFC 198 at [33]-[36].
The Tribunal also made it clear in the s.424A letter that the Tribunal might consider the applicant’s claims to have been fabricated; might find that the applicant was not being truthful; and might not grant her a protection visa. The Tribunal provided the applicant with an opportunity to reply to the s.424A letter prior to the making of its decision.
I am satisfied that the Tribunal made findings based on the evidence and material before it and that those findings, in particular as to the applicant’s adverse credibility, were open to it on all that evidence and material.
The Tribunal provided well-articulated and sufficient reasons for rejecting the applicant’s claims; applied the correct law to those findings; and reached its conclusions that the applicant did not have a well founded fear of persecution if she were to return to China and therefore that she was not a person to whom Australia has protection obligations, based on those findings.
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law. The Tribunal’s conclusions that the applicant was not a witness of credit were findings of fact par excellence:
“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.” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67]).
It is no part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. 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.
Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact (Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137]).
For the above reasons, I am therefore satisfied that a fair reading of the Tribunal’s decision demonstrates that it complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law. I detect no jurisdictional error 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 she claims the Tribunal has not properly considered whether she would be placed in danger if she were to return to China.
A fair reading of the Tribunal's decision makes it clear that the Tribunal closely considered the grounds on which the applicant claimed to fear persecution, including her allegations of past mistreatment by the Chinese authorities in relation to her practice of Falun Gong (CB 129) and her assertion that she was a Falun Gong practitioner (CB 130).
Having considered all the evidence before it, the Tribunal concluded that it was not satisfied that the applicant feared persecution in the manner that she claimed. For instance, the Tribunal found that some of her evidence was inconsistent with her claims about past mistreatment by the PSB (CB 136). Also, in relation to her claims that she was a Falun Gong practitioner, the Tribunal concluded that:
Taking into account the reasons set out above, I do not accept the applicant’s claims that she was a Falun Gong practitioner in China or Australia. I do not accept that she has been mistreated in China for reasons of Falun Gong practice. Accordingly, I do not accept hat she faces a real chance of persecution for reasons of Falun Gong practice if she returns to China now or in the foreseeable future (CB 136).
I therefore consider that, contrary to the applicant’s assertion, the Tribunal properly considered whether the applicant would be placed in danger if returned to China.
Accordingly, Ground 2 of the application is rejected.
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 forty-three (43) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 24 April 2008
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