SZLIV v Minister for Immigration
[2008] FMCA 338
•5 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLIV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 338 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of Refugee Review Tribunal decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons that he is a Falun Gong practitioner – allegation of bias – no jurisdictional error – privative clause decision. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| SBBS v Minister for Immigration &Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZLIV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2918 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 March 2008 |
| Date of Last Submission: | 5 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2008 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Nolan |
| 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 $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2918 of 2007
| SZLIV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of the Peoples Republic of China. He asks the Court to issue of writ of certiorari to quash the decision of the Refugee Review Tribunal. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The Applicant had sought protection in Australia on the basis that he fears persecution as a Falun Gong practitioner.
The Applicant complains that the Tribunal made three jurisdictional errors:
a)First, he claims the Tribunal failed to consider the information that he had provided in response to a letter that the Tribunal wrote to him under s.424A of the Migration Act.
b)Second, he claims that the Tribunal had bias against him and failed to consider those claims because of bias. He also claims that the Tribunal failed to consider his claim because of a lack of sufficient independent information.
c)Finally, the Applicant complained that the Tribunal did not give him the opportunity to explain misunderstandings and wrongly judged his explanation at the hearing was inconsistent with other evidence.
Background
The background to this matter is that the Applicant arrived in Australia on 23rd February 2007. He applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 28th February 2007. In that application he claimed he feared persecution on the basis of being a practitioner of Falun Gong and having been arrested and detained and mistreated because of that.
A delegate for the Minister for Immigration & Citizenship refused his application for a visa on 24th March 2007.
Application to the Refugee Review Tribunal
On 26th April. 2007, the Applicant applied to the Refugee Review Tribunal for a review of a decision of the delegate. The Tribunal wrote to the Applicant on 9th May. In that letter the Tribunal invited the Applicant to attend a hearing to give oral evidence and present arguments on 13th June 2007.
The Applicant indicated that he did wish to attend the hearing and would require an interpreter in the Mandarin language. He attended the hearing and gave evidence with the assistance of an interpreter. According to the Refugee Review Tribunal hearing record, page 44 of the Court Book, the hearing commenced at 9:30am and lasted three hours and 30 minutes.
The Applicant produced his Chinese passport and other documentary evidence. After the hearing, on 4th July 2007, the Tribunal wrote to the Applicant. The letter was clearly intended to comply with the requirements of s.424A of the Migration Act. The letter was headed "Invitation to Comment on Information" and informed the Applicant that the Tribunal had information that would, subject to any comments that he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa.
The letter referred to the Applicant's passport which showed that he had a visa to enter Malaysia and Singapore and had, indeed, entered Malaysia and Singapore in August 2006. However, when the application for a protection visa, in answer to question 32: which was: "Did you ever travel outside your home country or country of residence before your current journey to Australia?" He replied, "No."
The letter also drew the Applicant's attention to the fact that his application for a protection visa he stated he had difficulties obtaining a travel document such as a passport and he stated that he had paid much more money for it.
The letter told the Applicant that the information was relevant because it raised questions about the credibility of his claims and was inconsistent with his claim of fear of being persecuted.
The letter set out other items of information about which the Tribunal had concerns. That included the Applicant's employment history, and the manner in which he left China, and the treatment that was given to him in China as a Falun Gong practitioner. The letter also raised with the Applicant the fact that he had at the hearing demonstrated a lack of knowledge about certain basic aspects of Falun Gong and the Tribunal was of the view that that information that he was not a Falun Gong practitioner.
The letter told the Applicant in some detail as to why the Tribunal considered all the information relevant and invited him to comment upon it in writing by 27th July 2007. The Applicant did provide a written reply on 27th July 2007 in which, in one page he commented on the matters in the Tribunal s.424A decision.
The Tribunal handed down its decision on 21st August 2007. A copy of the Tribunal decision record came be found at pages 58 through to 80 of the Court Book. In the decision record the Tribunal considered the Applicants claims and evidence, not only from his application for a protection visa, but also in a considerable amount of detail in his oral evidence to the Tribunal.
The Tribunal also referred to the s.424A letter and the Applicant's reply. The Tribunal also noted that it had consulted some Independent Country Information about the practice of Falun Gong.
The Tribunal’s Findings and Reasons
The Tribunal's Findings and Reasons are set out at pages 73 through to 80 of the Court Book. The Tribunal noted that the Applicant's claims were essentially that he was a Falun Gong practitioner and feared returning to China because he had been persecuted by the Chinese authorities and would be persecuted for his Falun Gong practice if he were to return to China.
The Tribunal accepted that the Chinese authorities sometimes persecute Falun Gong practitioners and noted that there is information from external sources that indicates that some Falun Gong practitioners may have a well founded fear of being persecuted in China as a result of the activities of the Chinese authorities.
However, the Tribunal, based on the information that the Applicant provided, was not satisfied that the Applicant had a well founded fear of being persecuted for reason of any connection with Falun Gong.
The Tribunal did accept that the Applicant was a citizen of the People’s Republic of China, and that he was who he claimed to be. However, the Tribunal did not accept that the Applicant was a witness of truth. The Tribunal then set out reasons why it did not accept the Applicant's evidence as being credible, at pages 74 through 77 of the Court Book. The Tribunal said:
Having regard to the applicant's overall creditability the Tribunal does not accept that he has been practising privately or publicly in Australia and does not accept that he was a Falun Gong practitioner in China or that he is a Falun Gong practitioner in Australia.[1]
[1] See Court Book at page 77
The Tribunal considered the matters contained in the Applicant's letter of 27th July 2007 in reply to the s.424A letter but was not persuaded by that information. The Tribunal found that the Applicant had provided false information in his application for protection visa and did not have a well founded view of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal did not accept the Applicant's claims that the Applicant was able to leave China on a short business trip to Malaysia and Singapore in August 2006 if he had been under surveillance from the authorities.
The Tribunal was not satisfied that the Applicant was persecuted for reasons of religion, political opinion or membership of a particular group. It was not satisfied there was a real chance that the Applicant would face serious harm for those reasons. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings for judicial review of that decision by means of an application and an affidavit filed on 21st September 2007. He filed an amended application on 29th November 2007, seeking writs of certiorari, mandamus and prohibition against the Tribunal and against the Minister.
He set out three grounds for review in his application:
(1) The Tribunal failed to consider the information provided in response of the s.424 letter. The Tribunal had bias against me and failed to consider my claims in the information provided at my hearing
(2)The Tribunal failed to consider my claims because of the bias against me and the lack of sufficient independent information.
(3) The Tribunal did not give me opportunity to explain the misunderstanding of my claims at the officer at the hearing. The Tribunal misjudged that my explanation at the hearing were inconsistent. My application was not considered according to law.
The Applicant did not file any written outline of submissions, but attended the Court and made oral submissions. The submissions related principally to a challenge to the Tribunal's factual findings. He complained of bias because he claimed the Tribunal did not understand or give proper consideration to his claims. He claimed that the Tribunal did not give him the opportunity to explain the misunderstandings about his persecution in China.
He was of the view that the Member of the Tribunal asked the questions and when the Member had finished asking questions the hearing was over. He did not ask the Tribunal for extension for time. I note that the hearing was shown to last for three and a half hours.
Ground 1
As to the claim that the Tribunal failed to consider the information provided in response to the letter to the Applicant under s.424A, I note that the Applicant's letter of 27th July 2007 concerned:
·His visit to Malaysia and Singapore.
·The Applicant's answer in his application for a protection visa that he had not been to any third country.
·His difficulties in obtaining a travel document.
·His practice of Falun Gong.
I am satisfied that the Tribunal considered all of those matters. The Tribunal considered and did not find credible the Applicant's claims about his ability to visit Malaysia and Singapore even though he felt he was under some sort of supervision. The Tribunal noted the Applicant's statement that he had answered "No" to Question 32 and the application for protection visa because of the misunderstanding and he thought that the question asked him whether he had been to Malaysia and Singapore on the way to Australia.
The Tribunal considered the Applicant's difficulties in obtaining a travel document, such as a passport, and found the Applicant's evidence there to be inconsistent and, indeed, false. The Tribunal also noted that the Applicant's knowledge of Falun Gong was inadequate and did not accept the Applicant's claims that he was or had been a Falun Gong practitioner because of the inadequacy of the information that he was able to provide about his practice of Falun Gong and his knowledge of Falun Gong.
The first ground, to my mind fails.
Ground 2
As to the claim of bias, I am mindful of the fact that bias is a serious allegation and must be strictly alleged and proved. The Applicant's claim of bias goes to no more than a claim of the Tribunal not considering his information properly and not giving him time to correct misunderstandings. There is no evidence in support of this by way of a transcript of the Tribunal hearing and, in my view, the Court can only, therefore, rely on the Tribunal decision record as an account of what occurred at the hearing.
There is no evidence of bias in the Tribunal's reasons. To make out bias an applicant must demonstrate that the Tribunal acted arbitrarily or capriciously and this has not been made out. (See SBBS v Minister for Immigration &Multicultural & Indigenous Affairs[2]).
[2] (2002) 194 ALR 749
There is no evidence of bias.
Ground 3
The Applicant claimed the Tribunal did not give him the opportunity to explain the misunderstandings and misjudged his explanation. As I indicated earlier the hearing lasted for some three and a half hours. There is no evidence that the Applicant asked for more time to explain his case to the Tribunal. A complaint that the Tribunal misjudged his evidence as being inconsistent is no more than a challenge to the Tribunal's facts and findings. In my view, there was evidence upon which the Tribunal was able to make such findings.
The Applicant's grounds of review fail.
Conclusion
The Applicant is not legally represented. My independent reading of the Tribunal decision does not show any discernable jurisdictional error that has not been raised. In the absence of jurisdictional error the Tribunal decision must therefore be a privative clause decision as defined by s.474 of the Migration Act. A privative clause decision is final and conclusive, not subject to orders of the nature of certiorari or mandamus or prohibition as the Applicant claims.
It follows that the application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant's claim has been unsuccessful. I am satisfied that this is an appropriate matter for a costs order. I am satisfied that the amount of $3,500.00 as sought is the appropriate figure.
The application is dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 17 March 2008
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