SZLFW v Minister for Immigration
[2008] FMCA 275
•20 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLFW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 275 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of RRT affirming a decision of a delegate not to grant a protection visa – applicant is a citizen of the People’s Republic of China claiming fear of persecution as Falun Gong practitioner – bias – allegation of bias – no evidence of bias – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.424A, 425 |
| SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609; [2007] HCA 26 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 |
| Applicant: | SZLFW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2649 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 February 2008 |
| Date of Last Submission: | 20 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2008 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Foreman |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2649 of 2007
| SZLFW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of the People's Republic of China. He asks the Court to review a decision of the Refugee Review Tribunal affirming a decision of the Minister's delegate not to grant him a protection visa. The Applicant asks the Court to issue a writ of certiorari quashing the Tribunal's decision and a writ of mandamus compelling the Tribunal to rehear and re-determine the matter according to law.
The Applicant claims that the Tribunal's decision should be quashed for two reasons:
a)because the Tribunal fell into jurisdictional error by failing to comply with the requirements of s.424A of the Migration Act, and;
b)by acting with bias in relying on the fact that the Applicant was physically unable to demonstrate the Falun Gong exercises which would show that he was a genuine Falun Gong practitioner.
The Minister for Immigration & Citizenship who is the Respondent to these proceedings has filed a Response saying:
i)The application for judicial review does not establish any jurisdictional error.
ii)The application does not raise an arguable case for relief.
iii)The Applicant has not filed any evidence in support of his allegation of bias and cannot establish that ground.
Background
The background to this matter is that the Applicant arrived in Australia on 24th January 2007. He applied for a Protection (Class XA) visa on 2nd March 2007. He claimed protection under the Refugees Convention on the basis of his fear of persecution in China because he is a Falun Gong practitioner.
A delegate of the Minister for Immigration & Citizenship refused his application for a protection visa on 24th March 2007. The delegate found that there were a number of factors which raised significant doubts as to the credibility of the Applicant's claims and the genuineness of his fear. The delegate was not satisfied that the Applicant was or would be persecuted by the Chinese authorities for his alleged Falun Gong beliefs.
Application to the Refugee Review Tribunal
On 27th April 2007 the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. The Applicant did not provide any further written information to the Tribunal in support of his application. He did however provide a copy of his passport issued by the People's Republic of China.
The Tribunal wrote to the Applicant on 16th May 2007 inviting him to attend a hearing of the Tribunal to take place on 3rd July 2007. The Applicant attended to hearing and gave evidence with the assistance of an interpreter in the Mandarin language. He brought his passport with him and a photocopy of the passport was taken by the Tribunal.
The Applicant gave oral evidence and the Tribunal asked him questions about his history and his Falun Gong beliefs. The Tribunal asked him if he could demonstrate the five Falun Gong exercises but the Applicant indicated that he was unable to do so due to a physical limitation caused by a sore left arm. The Applicant also gave other reasons as to why he could not demonstrate the exercises. The Tribunal asked the Applicant about whether he had any difficulties in passing through immigration checks when he left China and the applicant said that he did not.
The Tribunal signed its decision on 11th July and handed that decision down on 31st July 2007. A copy of the Tribunal decision record can be found in the Court Book at pages 53 through to 63. In that decision the Tribunal sets out the Applicant's claims and evidence and quotes from the decision of the delegate refusing the Applicant be granted a visa.
The Tribunal set out at pages 59 to 61 of the Court Book a summary of the Applicant's oral evidence to the Tribunal about his practise of Falun Gong. The Tribunal asked the Applicant whether he had ever been arrested in the People's Republic of China and the Applicant said that he had not. The Tribunal asked the Applicant whether he had any difficulty in obtaining his Chinese passport and the Applicant stated that he did not. He said that he had had no trouble because the police had not found him but told the Tribunal that the police may be after him because he practised Falun Gong and they may find him.
The Tribunal told the Applicant that it had great difficulty in accepting that he was a Falun Gong practitioner because he was not able to demonstrate any of the exercises or describe them or provide the Tribunal with any evidence of the benefits derived from the practise of each of the exercises. The Tribunal noted this explanation by the Applicant:
"The applicant's explanations were invariably that he was too nervous, that he had a physical limitation because of the sore left arm, that he had forgotten the exercises, and that he had never practised."[1]
[1] See Court Book at page 61
The Tribunal asked the Applicant about whether he had any difficulties passing through immigration when he departed the People's Republic of China and the Applicant stated that he did not.
The Tribunal’s Findings and Reasons
The Tribunal set out its findings and reasons and they appear on pp.61 to 63 of the Court Book. The Tribunal was not satisfied that the Applicant was a genuine Falun Gong practitioner. Whilst the Applicant explained that there were five fundamental exercises the Tribunal noted that he was unable to name correctly four of the exercises and had difficulty remembering the fifth. When the Tribunal asked the Applicant to demonstrate each of the exercises the applicant did not do so. The Tribunal noted this:
"The applicant stated that he had a physical limitation which was due to a fall which resulted in injury to his left arm. The Tribunal stated in the absence of him being able to provide a physical demonstration, that at the very least, it wanted a description of the exercises and benefits derived from each of the exercises. The applicant refused to do any of the exercises. The Tribunal could understand the reasons for this given his stated physical limitation, but there was no reason the applicant was not able to provide the Tribunal with a description of the exercises and the benefits derived."[2]
[2] See Court Book at page 61
The Tribunal found this lack of knowledge of the exercises fundamental to the practise of Falun Gong and that led it to conclude that he was not a Falun Gong practitioner. The Tribunal made that finding and found that his claims had been fabricated in an attempt to invoke Australia's protection obligations. The Tribunal noted that there was no evidence that the Applicant had been the subject of ill treatment in the People's Republic of China and noted that the Applicant had never been arrested; he had obtained a passport lawfully; and had no problems exiting the People's Republic of China.
The Tribunal did not accept that the Applicant had a real chance of persecution arising from his alleged religious opinion or any other convention ground should he return to the People's Republic of China and was not satisfied that he had a well founded fear of persecution for a Convention reason in the People's Republic of China. Accordingly, the Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court for judicial review by means of an application and supporting affidavit filed on 27th August 2007. In the application the Applicant sets out two grounds for review.
Ground 1
First, the Applicant claims that the RRT failed to afford him procedural fairness as it failed to invite him to comment on information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review. By failing to invite the Applicant to comment the Tribunal acted in breach of s.424A of the Migration Act. The Applicant said that the Tribunal found that he had obtained his passport lawfully and had no problems exiting the People's Republic of China. He claims that the Tribunal failed to invite him to comment on this and to make sure that the Applicant understood how and why that information was relevant.
The fact is that the Tribunal had no obligation under the provisions of s.424A(1) of the Act to provide this information to the Applicant and invite him to comment upon it. The information about obtaining a passport and leaving the People's Republic of China was provided to the Tribunal by the Applicant himself as part of his application for review to the Tribunal. Accordingly, that information is information that the Applicant gave for the purpose of the application for review and is excluded from the operation of s.424A(1) by s.424A(3)(b) of the Migration Act.
Counsel for the Minister, Mr Foreman, submitted information in s.424A does not encompass the Tribunal's subjective appraisals, thought processes or determinations nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps. (See SZBYR v Minister for Immigration & Citizenship[3] at [18]).
[3] (2007) 235 ALR 609; [2007] HCA 26
Quite clearly the Tribunal's finding about the ease with which the Applicant obtained the passport and left China does not come within the purview of s.424A(1). I have been unable to identify any information upon which the Tribunal relied as a reason or part of the reason for affirming the decision that does fall within s.424A(1) of the Migration Act. It follows that ground one must fail.
Ground 2
The Applicant then claims in ground two that the Tribunal was biased. He relies on his assertion that he was unable to show the five exercises fundamental to Falun Gong due to the physical limitation that he had and because of this the Tribunal relied on that information and found that he had limited knowledge about Falun Gong.
The first point to be made is that bias is a serious allegation containing an implication of personal fault on the part of the decision‑maker. It must be strictly alleged and strictly proved.
The Full Court of the Federal Court has set out quite clearly in decisions such as SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[4] and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[5] that an allegation of bias is a serious allegation indeed. It will seldom, if ever, be established just by reading the reasons for decision of the Tribunal.
[4] [2002] FCAFC 358
[5] [2002] FCAFC 361
In this case the Applicant has provided no evidence of bias. Even if the Court were to take his claims in Ground two of the application at their highest that would not establish bias. In any event, the claim is misconceived because it was not the Applicant's failure to perform the exercises due to his physical limitation that persuaded the Tribunal that he had limited knowledge about Falun Gong.
The Tribunal made it quite clear in the passage which I quoted at page 61 of the Court Book that it understood why because of his injury the Applicant could not demonstrate the exercises however the inability to perform the exercises should not have stopped the Applicant from describing the exercises and describing the benefits that flowed from them. The Tribunal noted, also at page 61 of the Court Book that the Applicant said that he was too nervous; that he had forgotten the exercises and that he had never practised.
The Applicant, when he addressed the Court today, told the Court that he was also nervous. In any event, a state of nervousness is not uncommon amongst applicants for protection visas before the Refugee Review Tribunal. It was certainly clear to the Tribunal that the Applicant had said that he was nervous and the Tribunal considered the Applicant's evidence aware that he was claiming nervousness, as is so often the case with applicants.
In short, there is no evidence to support the claim of bias. I note that in the Applicant's affidavit he claims that the Tribunal's decision contained jurisdictional error. In paragraph 2 he said:
"RRT found that I am not a committed Falun Gong practitioner. I believe RRT acted capriciously and arbitrarily in making such finding."
If that is a separate ground, and I am mindful of the fact that the Applicant is not legally represented, there is nothing in my reading of the Tribunal's decision which would indicate that the Tribunal acted capriciously or arbitrarily in deciding the way that it did.
Conclusion
It is a fact that the Applicant is not legally represented - that of course is a misfortune for any party before the Court. It does impose an obligation upon the Court, in my belief, to scrutinise the decision with extra care in an effort to ascertain whether any arguable case for jurisdictional error can be made out.
I have already rejected grounds of bias and failure to comply with s.424A of the Migration Act. I am satisfied that the Tribunal complied with s.425 of the Act. It invited the Applicant to attend a hearing and he indeed attended on 3rd July 2007 and gave evidence with the assistance of an interpreter. The Tribunal concentrated on whether the Applicant was a genuine Falun Gong practitioner which was the very issue that the delegate had referred to in rejecting the Applicant's claims.
Quite clearly, the Applicant could have been under no misapprehension that the credibility of his claim to be a genuine Falun Gong practitioner and to have suffered harm as a result was going to be under scrutiny by the Tribunal. The delegate had made that clear and the Tribunal acted on it.
There is no breach of s.425 of the Migration Act. In fact I am unable to discern any jurisdictional error or suggestion of one. It follow that in the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-section 474(2) f the Migration Act. Under sub-section 474(1) of the Act a privative clause decision is final and conclusive, it is not subject to orders in the nature of certiorari or mandamus as the Applicant seeks, therefore the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in his claim and his substantive application has been dismissed. The Minister has been legally represented and in my view this is a proper matter for the Court to exercise its discretion and make an order for costs in favour of the Minister. The amount sought, inclusive of counsel's fees, is $4,400.00 - that is within the scale set by the Federal Magistrates Court Rules.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 7 March 2008
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