SZLGV v Minister for Immigration
[2008] FMCA 245
•20 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLGV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 245 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLGV”. |
| Migration Act 1958 (Cth), s.91X |
| Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412 Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Ethnic Affairs v Guo & Anor (1996) 191 CLR 559 Minister for Immigration & Multicultural Affairs ex parte Durairajasingham [2000] HCA 1 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 |
| Applicant: | SZLGV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2780 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 21 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitor for the Respondents: | Ms Z McDonald of DLA Phillips Fox |
ORDERS
The application filed on 10 September 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2780 of 2007
| SZLGV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is from Harbin, Heilongjiang province, the People’s Republic of China and claims to have been born in 1960. There are no details in respect of her marriage but she states she divorced in 2000. She claims her occupation before she left China was a “Small Business Owner”. In the typed statement attached to her visa application, the applicant claims to be a genuine Falun Gong practitioner. She used to have poor health but this soon improved after practising Falun Gong in 1998. She states that a friend introduced her to Falun Gong and it benefited her health and spirit.
In July 1999, Chinese authorities started persecuting Falun Gong practitioners and the applicant was reported to the police and arrested by Harbin police in late 2000. She claims that they confiscated her cassette and Falun Dafa books. She was detained in the Harbin detention centre for three months and this made her extremely weak. She was unable to walk by herself when she was released. After her release, her husband applied for divorce because he did not want to be involved. The applicant claims that if she remained in China she would have been gaoled again so she bribed a government officer to obtain a passport to visit Australia. She states that Australia is a democratic country and that Falun Gong practitioners can exercise without restriction.
The applicant arrived in Australia on 28 February 2007 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) Visa on 6 March 2007. A delegate of the minister refused to grant the visa on 24 March 2007 and the applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal’s decision (reference number 071369778) of C. Parker dated 26 July 2007 is the decision under review by this Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
At the first court date directions hearing, the applicant indicated to the Court that she wished to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of success of her appeal. The applicant was allocated a panel advisor but the advisor notified the scheme coordinator that he was unable to contact the applicant as correspondence was returned and the applicant had left that address and the telephone number had been discontinued.
Orders were also made granting the applicant leave to file an amended application giving complete particulars of each ground of review relied upon by 11 December 2007. However, at the time of the hearing before this Court that document had not been filed. Nor had the order requiring the applicant to serve a short written outline of submissions and list of authorities fourteen days before the hearing had been complied with.
Consideration
When the applicant was invited to make oral submissions in support of her application she sought leave to file a document which was in Mandarin, without translation, that she claimed was evidence that she had been in detention in China. She stated that she had obtained this document in response to the invitation extended by the Tribunal in its “Acknowledgment of Application” letter forwarded to her on 30 April 2007. The letter indicates that the applicant should “immediately send any documents, information or other evidence that you want the Tribunal to consider”. The applicant stated that the document was discussed with the Tribunal member during the hearing held on 20 June 2007. The following passage is in the Tribunal’s decision under the sub-heading “The Hearing” states:
The Tribunal asked whether she had any documents she wished to produce. She indicated she was seeking documents from China to prove she was detained (a certificate given to her on release) and a medical report about her legs: it had been very wet in detention and she got a disease where the tissues of the bone died due to dampness. The medical papers were dated 1990-2000. Her brother was sending this information. The Tribunal indicated any information given before a decision was made would be fully considered. (CB 73.2)
I indicated to the applicant that as this was a judicial review of the Tribunal’s decision, the Court was not in a position to now accept new evidence that had not been considered by the Tribunal. Further, documents in a foreign language required a translation in English prepared and certified by a qualified interpreter so that the contents of the document could be understood by the Court. The applicant was referred to the “Acknowledgement of Application” letter forwarded by the Tribunal which contains its information in the following form:
Any document not in English should be translated by a qualified translator. (CB 46.5)
This information was also provided to the applicant on the information sheets attached to the original orders made in this Court on 6 November 2007. This is contained in the information sheet prepared in Mandarin. In the circumstances, leave to file the document was denied.
The applicant was asked to confirm whether she had filed an amended application or written submissions. She indicated from the bar table that because of her poor memory she had forgotten to attend to these issues. It was brought to the applicant’s attention that these orders together with the requirement to attend Court at the day’s hearing were contained in the orders made at the directions hearing and that the applicant was provided with a sealed copy of those orders before she left the Court precinct. Besides the orders, an information sheet completed in Mandarin and the applicant was advised to seek help to have the orders which were completed in English, explained to her so that she understood the content and the requirements to adhere to that timetable. The applicant simply responded that she had forgotten due to her poor memory. It is noted that at the commencement of the Tribunal hearing, the applicant sought to have the matter adjourned, claiming dizziness and memory loss. However, no medical evidence was presented and the Tribunal decided to proceed on the basis that the applicant was well able to understand questions and provide answers.
Decision of the Tribunal
The Tribunal concluded that the applicant did not have a well founded fear of persecution because she was not a Falun Gong practitioner and would not be perceived as a Falun Gong practitioner if she returned to China. In reaching that conclusion, the Tribunal referred to the following:
a)The knowledge level of Falun Gong was inadequate. The Tribunal did not accept the applicant’s explanation for not remembering the details which highlighted her general lack of confidence when responding to questions about Falun Gong (CB 76).
b)Inconsistent evidence about her circumstances in China, inconsistencies relating to her financial position, sale of her home and the sum paid for her passport. The Tribunal held these inconsistencies raised concerns about her credibility (CB 77).
c)The issue of a passport in 2002 demonstrates that the applicant was not of interest to the authorities and rejected the claim that she had to pay considerable sums in both 2002 and 2006 to obtain the passport. The Tribunal found that both passports were issued in her name with the correct details (CB 77).
d)The delay in seeking to leave China which was not consistent with a person who sought to flee persecution (CB 77).
e)It did not accept that the lack of personal involvement with Falun Gong in Australia was due to ill health (CB 78).
f)The claim of seeking documents from China to evidence her detention and consequent medical condition but these were not forthcoming. (CB 78)
Ground one
There was no evidence or other material to justify the making of the decision.
The respondents in their written submissions submit that it is for the applicant to satisfy the Tribunal that she meets the criteria for the grant of a protection visa. In this matter, the Tribunal was unable to reach the requisite state of satisfaction on the evidence before it and was therefore bound to refuse the visa: SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 per Ryan, Jacobson and Lander JJ at [15]-[16]:
15 It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. A criterion for a protection visa specified in s 36(2) of the Act is;
‘...that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.’
16 It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention. As Gummow and Hayne JJ observed in Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister;
‘The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.’
Moreover, the Tribunal was entitled, in assessing whether the appellant had a well-founded fear of persecution if he were returned to Sri Lanka to take account of the fact noted in the extract quoted at [6] above that "according to the Applicant’s own evidence he departed Sri Lanka legally and without difficulty."
Having regard to the fact that the Tribunal only had before it the facts as alleged by the applicant that were contained in the visa application and the oral evidence during the Tribunal hearing, it was the only material upon which the Tribunal could proceed. The relevant fact pertaining to the application need to be supplied by the applicant herself in as much detail as necessary to enable the applicant to establish the facts. It is for the applicant to make out her case: Minister for Immigration & Ethnic Affairs v Guo & Anor (1996) 191 CLR 559 per Kirby J at [596]. In this matter, the applicant provided a single page typed statement setting out her claims. This was presented in a format that was double space and in brief paragraphs which contained a minimum amount of information.
When the applicant lodged a review application with the Tribunal on 26 April 2007 no further information was supplied. The applicant was invited to attend a hearing of the Tribunal on 20 June 2007. The invitation letter dated 15 May 2007 contained a leaflet which contained information about the hearing and the rights of the applicant. The invitation also informed the applicant that if there is any further information which she relied upon then it should be forwarded to the Tribunal accompanied by an English translation to permit the consideration of that material. Although there has been no attempt to identify what material should have been taken into account, the applicant cannot now complain that any other facts were not taken into account or furnish additional facts and ask them to be considered by this Court. The Tribunal accurately summed up the nature of the applicant’s claims. All of the matters presented by the applicant were taken into account by the Tribunal in arriving at its conclusion were probative of the issues before it: Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547.
I am satisfied that the Tribunal did not make any error in its approach to reviewing the decision of the delegate. The Tribunal’s conclusion was made on the facts that have been placed before it and the conclusion reached was open to it. Ground one cannot be sustained and should be dismissed.
Ground two
The Refugee Review Tribunal should not conclude that the Chinese authorities have no interest in the applicant because the applicant is a Falun Gong practitioner.
In the absence of any particulars or submissions ground two appears to be a statement expressing a disagreement with the Tribunal in the decision that it has reached. This may be an attempt by the applicant to invite this Court to undertake a merits review of the Tribunal decision. On the assumption that this is the intention expressed in this ground, it is not part of this Court’s jurisdiction in judicial review proceedings to conduct a merits review of the evidence to evaluate whether an alternative decision should have been reached. The respondent’s written submissions refer the Court to the decision in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin and Lander JJ at [10] where their Honours stated:
[10] In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S 157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
See also Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412 per Mason CJ at [420];and Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at[40]-[42]. Whether this is a statement of disagreement or a request for a merits review the ground cannot be sustained and should be dismissed.
Ground three
It is not reasonable for the Tribunal to conclude that the applicant does not face a real chance of persecution without any further information.
Ms McDonald in her written submissions submits that the Tribunal’s task as an inquisitorial review body was to ask questions, weigh evidence and make findings of fact. After performing this task, the Tribunal had concerns about the applicant’s credibility on the basis of her inadequate knowledge of Falun Gong, her inconsistent oral evidence about her circumstances in China, her two passports, her delay in leaving China and her lack of involvement in Falun Gong in Australia. It is submitted that in the circumstances the Tribunal’s decision was not unreasonable.
I agree that the findings in relation to credibility are for the Tribunal alone to make and cannot be disturbed upon judicial review unless they are not reasonably open on the evidence: Minister for Immigration & Multicultural Affairs ex parte Durairajasingham [2000] HCA 1 per McHugh at[67]. I agree with the submissions made by Ms McDonald that the adverse credibility finding was clearly open to the Tribunal to make due to the applicant’s unconvincing evidence. I am satisfied that ground three cannot be sustained and should be dismissed.
Conclusion
The applicant in these proceedings was a self-represented litigant who appeared with the assistance of a Mandarin interpreter. It was clear that she had no understanding of the issues before the Court or how she should present her case. Although requesting the opportunity to participate in the panel advice scheme, the applicant had changed addressed and had her phone disconnected prior to contact being made by the advisor. The importance of providing current contact details to the Court was brought to the applicant’s attention at the first court date directions hearing and the point was emphasised at that time. Nor did the applicant avail herself of the opportunity to file an amended application setting out the grounds with particulars. No written submissions were tendered by the applicant and her oral submissions were limited to an attempt to file a document which she had failed to provide to the Tribunal.
The applicant relied on the grounds in her original review application document which appears to have been prepared by the agent who operates the post office box located in the convenience store at 226 Elizabeth Street, Surry Hills. The grounds of review and the post office box number quoted by the applicant in her documentation were identical to the matter before this Court of the previous day. The approach adopted by applicants using this facility has a striking resemblance both in the content of the documentation and the failure to comply with orders of the Court.
Ms McDonald assisted the Court in the preparation of the written submissions and I am satisfied that those submissions respond to the issues raised in the application. However, this places an obligation on the Court to independently consider whether any argument based on material contained in the Court Book and in particular the Tribunal’s decision can support a claim of jurisdictional error. After reviewing those documents it is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision making process. In the circumstances the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
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