SZLGD v Minister for Immigration
[2008] FMCA 263
•20 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLGD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 263 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of China claiming fear of persecution because of her membership and practice of Falun Gong – allegation of bias – merits review – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 425, 425A, 426, 474 |
| Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 |
| Applicant: | SZLGD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2690 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 Mitchell |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2690 of 2007
| SZLGD |
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. She asks the Court to review a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration & Citizenship not to grant her a protection visa. She asks the Court to set the Tribunal's order aside.
The Applicant claims that the Tribunal fell into jurisdictional error when it made its decision. In particular, she claimed:
a)The Tribunal misinterpreted her responses in answer to her knowledge of Falun Gong, and;
b)The Tribunal did not fulfil its statutory obligations under the Migration Act and examine the Applicant's case as it was presented.
The First Respondent, the Minister for Immigration & Citizenship, filed a Response on 12th September 2007. The Minister opposes making the orders sought by the Applicant and claims that the grounds of the application do not properly identify any jurisdictional error and may be interpreted as an attempt to engage the Court in review of the factual merits of the Tribunal's findings. The Minister also claims that neither of the grounds in the Applicant's application is supported by any particulars.
Background
The background to this matter is that the Applicant arrived in Australia on 25th October 2006. She applied for a Protection (Class XA) visa on 24th November 2006. She claimed that she left China because she is a Falun Gong practitioner. Falun Gong members and practitioners form a social group in China that have been persecuted and the Applicant claimed that she feared to be arrested and placed in a concentration or detention centre because of her activities.
A delegate of the Minister for Immigration & Citizenship refused her application for a visa on 22nd December 2006. The delegate's reasons for refusing the visa were that the delegate was not satisfied that the Applicant had substantiated a claim of well-founded fear of persecution. The delegate gave four reasons:
i)The Applicant had not provided any detail or evidence to substantiate her claim that she was a genuine Falun Gong practitioner.
ii)The Applicant had not provided any detail or evidence to indicate that she had ever experienced any problems with the authorities in China on account of her claimed involvement in Falun Gong.
iii)The Applicant had not provided any information to indicate that she belonged to a category of persons who would be of interest to the authorities if she were to return to China.
iv)The Applicant had departed from China using her own valid passport issued in April 2006 and had not indicated that she had any need to circumvent the stringent security vetting procedures in China before she left.
Application to the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal on 5th March 2007 for a review of the delegate's decision. A copy of her application can be found at pages 51 to 54 of the Court Book. The Applicant did not provide any further documentary evidence to the Tribunal except for a covering letter dated 1st March 2007 which indicated that she had not been properly notified by the Department about the delegate's decision and when she went to the Department to inquire about the decision was told that the letter had been returned unclaimed and that they would send the letter again to her new address. She said she received it on 28th February 2007.
The Tribunal accepted that the Applicant had not been properly notified of the delegate's decision and that the prescribed time period to make a valid application for review had not started running. The Tribunal found that the delegate's decision was an RRT reviewable decision under s.411(1)(c) of the Migration Act and found that the Applicant had made a valid application for review under s.412.
The Tribunal wrote to the Applicant on 20th March 2007 and invited her to appear at a hearing of the Tribunal on 17th April 2007. The Applicant completed a Response to Hearing Invitation indicating that she wished to attend the hearing and would require the assistance of an interpreter in the Mandarin language. She indicated that she wanted to bring a friend with her and would prefer that a female interpreter be provided.
The Applicant attended the hearing on 17th April and gave evidence. The Applicant had the assistance of a female interpreter in the Mandarin language. The Applicant provided copies of her Chinese passport and certain documents including photographs. The documents were written in Chinese and translated into English. They were copies of sureties for bail, which appeared to have been signed by the Applicant's sister and the Applicant. There was a copy of a summons issued by the Public Security Bureau (PSB). The Applicant provided some photographs of a parade celebrating that a number of members of the Chinese Communist Party had left that party.
After the hearing the Tribunal wrote to the Applicant in a letter dated 5th June 2007. That letter was headed "Invitation to Comment on Information". The letter told the Applicant that the Tribunal had information that would, subject to any comments that she made, be the reason or part of the reason for deciding that she was not entitled to a protection visa. The letter set out two pieces of information, the first of which related to the Applicant's claim to have been a Falun Gong practitioner since 2005. The letter told the Applicant the following:
"In your written statement on the Departmental file you claimed you had been a Falun Gong practitioner since 2005 and that it had led to improvements in your physical and mental health. At the Tribunal hearing you were asked if you were familiar with the principles of Falun Gong and you stated that you did not have a deep understanding of the beliefs and principles and that you practised for your health. You were also asked if you knew the exercises and you said you had not practised for long and did not have a deep understanding.
This is significant as it may lead the Tribunal to form the view that you are no a genuine Falun Gong practitioner and you have made up these claims in order to obtain a Protection visa."[1]
[1] See Court Book at page 86
The letter also referred to the Applicant having been summoned to attend a police station and that her home had been raided. The Tribunal informed the Applicant why it considered that information significant. The Applicant was invited to comment on the information in the letter in writing in English by 29th June 2007.
The Applicant did take advantage of the Tribunal's offer to comment. On 28th June 2007 the Applicant, through a migration agent, submitted a statutory declaration replying to the Tribunal's concerns expressed in its letter. A copy of that statutory declaration can be found at pages 90 through to 93 of the Court Book. The Applicant also provided a statutory declaration of some length by another person setting out that other person's mistreatment by the PSB and having met the Applicant. There was a further statutory declaration from a person who claimed to know the Applicant for more than three months through involvement in Falun Gong in Australia.
The Tribunal signed its decision of 27th July 2007 and handed that decision down on 7th August. A copy of the Tribunal decision record can be found at pages105 through to 117 of the Court Book. In the Tribunal decision record the Tribunal set out the Applicant's claims and evidence taken from Departmental files and the Applicant's oral evidence at the hearing. The Tribunal also referred to the letter to the Applicant seeking her comments on certain information, which was a letter clearly written to comply with the requirements of s.424A of the Migration Act and the documentary material the Applicant provided in reply.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out at pages 114 through to 117 of the Court Book. The Tribunal noted that the Applicant was the holder of a valid passport issued on 30th April 2006 in the People's Republic of China. Whilst the Tribunal noted that the Applicant applied for protection on the basis that she was a practitioner of Falun Gong the Tribunal found that the Applicant was not a genuine practitioner of Falun Gong and set out its reasons on pages 114 and 115 of the Court Book.
In short the Tribunal found the Applicant was not a genuine practitioner of Falun Gong based on the Tribunal's perception of the Applicant's lack of knowledge of the practises and the beliefs of Falun Gong. The Tribunal referred to the Applicant's evidence at the hearing, the documents that she submitted, including the statements from other parties.
The Tribunal affirmed the decision of the Minister's delegate not to grant the Applicant a Protection (Class XA) visa.
The Application for Judicial Review
The Applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit in support on 31st August 2007. In the application the Applicant relied on two grounds, first, that the Tribunal misinterpreted her responses in relation to her knowledge of Falun Gong and, second, that the Tribunal did not fulfil its statutory obligation under the Migration Act and examine the Applicant's case as it was presented. In her affidavit in support the Applicant said at [2]:
"I am a genuine Falun Gong practitioner who had been persecuted by the Chinese Authority. I believe that I am a person to whom Australia has protection obligations under the United Nations Convention and protocol related."
The Applicant’s Submissions
The Applicant did not submit a written outline of submissions but attended Court and made oral submissions. She said the reason why she came to Australia was to seek protection. After she was persecuted in China she had an opportunity to come to Australia. After she came to Australia she did not know anything about the procedures for applying for a visa. She remembered that when she attended the Tribunal hearing the Member asked her a question as to why she did not provide documentary evidence before the hearing. She said that she responded that she believed that her documents were so important that she should present them to the Member personally and not post them. The Applicant said that she believed that the Tribunal Member should not have made a conclusion as to whether she was a Falun Gong member based on a procedural error that she might have made.
The Applicant expressed the view that the Tribunal might have exercised racial discrimination against her in not granting her application. When asked to comment on why she felt there was racial discrimination the application that at the hearing she felt that the Tribunal was judging the case on that basis. She told the Court that she had presented evidence to the Tribunal and was aggrieved that the Tribunal did not have evidence disproving her claims and yet it did not accept her claims.
The First Respondent’s Submissions
In reply to oral submissions by Mr Mitchell of counsel, who appeared for the Minister, the Applicant asked how it could be that if the Tribunal had not verified whether her documents were genuine or false how could the Tribunal deny that her documents were genuine. She reiterated that she had explained to the Tribunal Member that she wanted to present her documents to the Member face to face rather than send them in beforehand and she told the Court that the Tribunal did not have any evidence to prove that all her documents were false.
In a written outline of submissions Mr Mitchell, who appeared for the Minister, submitted first of all that there was no evidence to demonstrate that the Tribunal had misinterpreted the Applicant's evidence as to her knowledge of Falun Gong. He submitted that where the Applicant had claimed to have regularly practised and studied Falun Gong since November 2005 it was reasonable to expect that the Applicant would have been able to demonstrate a knowledge of the exercises and he submitted that this appraisal of the Applicant's evidence was open to the Tribunal and constituted a finding of fact that should not be reviewed by the Court. He referred the Court to the decision in Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[2] at [67].
[2] (2000) 168 ALR 407
In commenting on the second ground of the application Mr Mitchell submitted that the Tribunal had considered the Applicant's claims and had considered the documents but doubted her claims that her house had been raided and doubted the authenticity of the documents submitted because the Applicant had not previously made those claims. He submitted that the Tribunal found that the Applicant had not had any difficulty in leaving China and therefore was not satisfied that she had suffered persecution in the past and did not accept that she was a genuine Falun Gong practitioner.
Mr Mitchell submitted that these findings were open to the Tribunal on the evidence and reflected a consideration of the integers of her claims. The Tribunal was not obliged to make findings as to every factual contention that arose from her evidence in circumstances where it disbelieved her claim to be a genuine Falun Gong practitioner and could not be satisfied about her claims that she had been persecuted in the past.
Conclusions
In considering the Applicant's claims her first ground is that the Tribunal misinterpreted the evidence and her comments in reply to the s.424A letter about her knowledge of Falun Gong. The Tribunal appears to have set out the Applicant's claims in some detail in the Court Book and certain appears to have considered the documentary evidence that the Applicant provided.
The fact is that, after considering the Applicant's evidence both oral and written, the Tribunal was not satisfied that she had established that she was a genuine Falun Gong practitioner. This was a factual finding for the Tribunal. There was evidence upon which it was open to the Tribunal to make that finding and it is not a function of the Court on conducting judicial review to substitute its own view of the facts for the view of the Tribunal. It is certainly not a case that the Court should second guess the Tribunal and form its own conclusions on factual matters. The Court's task is to ascertain whether the Tribunal decision is affected by jurisdictional error.
It is also a misconception of the law to expect the Tribunal to accept the Applicant's evidence unless it can produce evidence in contradiction to the Applicant's claims. Under s.65 of the Migration Act it is up to the Applicant for a visa to satisfy the Minister, or in this case the Tribunal standing in the shoes of the Minister, that the Applicant is entitled to a visa. If the Applicant satisfies the Tribunal then the Tribunal forms the view that the Applicant should receive a visa but if the Applicant does not satisfy the Tribunal then there is no entitlement to a visa.
Whilst the Tribunal has powers to seek information and make its own inquiries under ss.424 and 427 of the Migration Act it is well established that there is no obligation on the Tribunal to conduct its own independent investigation of an applicant's case. It is up to the Applicant to satisfy the Tribunal that the Applicant qualifies for a visa. There is no requirement on the Tribunal to disprove the Applicant's claims.
It follows that both of the grounds set out in the Applicant's application must fail. The Applicant's claims set out in her affidavit relate to no more than a recital of her claims that she is entitled to a protection visa. The Applicant's affidavit contains nothing to substantiate any claim of jurisdictional error.
The Applicant claimed at the hearing, and it is not claimed in any document filed by the Applicant, that the Tribunal may have made a decision against her based on racial discrimination. In effect, this is an allegation of bias which is a serious allegation which implies personal fault on the part of the decision-maker. It is well established by decisions of the Full Court of the Federal Court in matters such as SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[3] and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[4] that allegations of bias or bad faith must be strictly alleged and strictly proved. There is no evidence of bias, bad faith or racial discrimination in this case and that ground, if it is a ground, must fail.
[3] [2002] FCAFC 358
[4] [2002] FCAFC 361
I accept the fact that the Applicant is not legally represented in these proceedings. I have read through the Tribunal decision and supporting documents independently of the Applicant's claims and the Minister's contentions in an effort to ascertain whether there is any other arguable case for jurisdictional error. I am unable to discern any jurisdictional error. There is no breach of s.425 of the Migration Act. The Tribunal invited the Applicant to attend the hearing and the Applicant attended and gave evidence with the assistance of an interpreter. There is no evidence that the interpreter was unequal to the task and indeed the Tribunal complied with the Applicant's request for a female interpreter.
The issue as to whether or not the Applicant was a genuine Falun Gong practitioner was the very issue of which the Applicant should have been aware because it was this issue upon which the delegate refused the application for a visa. The Applicant could hardly have been unaware that the genuineness of her claims to be a Falun Gong practitioner were to be the subject of the Tribunal hearing and decision.
There is no breach of s.424A of the Migration Act. The decision largely turns on the Tribunal's failure to be satisfied with the Applicant's evidence. The evidence of the Applicant in support of the Tribunal is excluded from sub-section 424A(1) by sub-section 424A(3) of the Migration Act. The Tribunal wrote a letter to the Applicant clearly intended to comply with s.424A of the Migration Act pointing out information that could be the reason or part of the reason for affirming the delegate's decision and invited her to comment on it in writing. The Applicant did provide those comments and the Tribunal considered them.
There is no breach of s.424A. There is no jurisdictional error that I can ascertain. In the absence of jurisdictional error it follows that the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. A privative clause is final and conclusive and is not subject to orders in the nature of certiorari or mandamus or prohibition. There are no grounds for setting aside the Tribunal decision.
It follows that the application will be dismissed.
Application for Costs
There is an application for costs on behalf of the First Respondent Minister in the sum of $5,000.00 inclusive of counsel's fees. The Applicant has been unsuccessful in her claim and in my view it is an appropriate matter for the Court to exercise its discretion in favour of the successful Respondent who has been represented by solicitors and counsel.
The amount sought, being $5,000.00, is an appropriate figure within the Court scale. The Applicant indicated that she did not wish to pay the Minister's legal costs, which I can quite understand, however in my view I am satisfied it is an appropriate order to make.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 5 March 2008
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