SZLLQ v Minister for Immigration
[2008] FMCA 481
•15 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLLQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 481 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 424A(3)(b); 474; pt.8 div.2 |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZLLQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3133 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 15 April 2008 |
| Date of last submission: | 15 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 April 2008 |
REPRESENTATION
| The Applicant appeared in person with a Mandarin interpreter |
| Counsel for the Respondent: | Mr M. Cleary |
| Solicitors for the Respondent: | Ms J. Dinihan, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3133 of 2007
| SZLLQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
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) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 August 2007 and handed down on 4 September 2007.
The Applicant claims to be from the People’s Republic of China (“China”) and a Falun Gong practitioner (“the Applicant”).
The Applicant arrived in Australia on 8 April 2007 having departed legally from Shanghai Airport on a passport issued in her own name and a visitor TR-676 (short stay) visa.
On 13 April 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution by the Chinese authorities for her practice and promotion of Falun Gong. The Applicant claimed that she was arrested in December 2003 for posting flyers about Falun Gong and detained for one month and subsequently sentenced to six months imprisonment during which she was “tortured terriblly (sic)”. The Applicant claimed that following her release she sold all her belongings in preparation for fleeing China and bribed an official to issue her a passport.
On 19 May 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate expressed “serious doubts on the credibility of her claims, and the genuineness of her claimed fear of persecution.” The Delegate found the Applicant’s claims to be uncorroborated, broad and lacking in relevant detail. The Delegate also noted inconsistencies in the Applicant’s evidence.
On 19 July 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further written material in support of the review application. On 14 August 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 10 October 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
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.
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 political 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 persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal decision
On 4 July 2007 the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone and invited the Applicant to attend a hearing on 7 August 2007 to give oral evidence and present arguments. The Applicant attended that hearing and gave oral evidence.
On 7 August 2007, the Applicant gave evidence at the hearing before the Tribunal in which the Applicant expanded upon her written claims. The Tribunal noted in its decision record that it discussed with the Applicant her travel to Australia; her previous travel to Singapore and Thailand; her introduction to and practice of Falun Gong in China; her arrest in December 2003 and subsequent detention; her general knowledge of Falun Gong; her release from detention in February 2004; the lack of evidence to corroborate her claims; and inconsistencies in her claims.
The Applicant’s claims before the Tribunal and the Tribunal’s decision are accurately summarised by counsel for the first respondent in his written submissions as follows:
“Applicant’s Claims
8. The applicant claimed to fear persecution in China from the Chinese authorities by reason of her Falun Gong practice in China.
9. The applicant claimed[1]:
[1] GB 68-70.
- She was introduced to Falun Gong by a friend in Shanghai, China, in 1998 to relieve back pain;
- She ‘transmitted’ Falun Gong to her friend who also benefited from the practice;
- She practices at her friend’s home in China 2-3 days per week;
- After Falun Gong was banned in 1999 she posted banners and flyers in the street to reveal the truth behind the government crackdown;
- In December 2003 she was arrested while posting the flyers;
- She was detained and tortured for seven months;
- After her release she returned to Shanghai to live and work an she had to report to the police once a week;
- She subsequently left China after collecting money from friends and obtaining a passport from a powerful Chinese government officer; and
- She will be arrested by the police if she returns to China.
The Tribunal’s Decision
10. In a decision dated 14 August 2007 the Tribunal affirmed the delegate’s decision to refuse a protection visa.
11. In coming to its decision to affirm the decision of the delegate the Tribunal reviewed at length the claims and evidence. Firstly, it reviewed the applicable law in unobjectionable terms. It then set out the applicant’s claims and evidence as well as certain independent country information. Finally, it set out its findings and reasons.
12. The Tribunal’s decision to affirm the delegate’s decision turned on the credit finding that was made about the applicant[2]. The Tribunal did not find the applicant to be a truthful and credible witness[3].
13. As a consequence of this finding the Tribunal did not accept any of the claims she made, including that[4]:
[2] GB 70-72.
[3] GB 71.
[4] GB 70-72.
- She was a Falun Gong practitioner in China;
- She has practiced Falun Gong since 1998;
- She was wanted by the Police;
- She posted banners and posters in the streets of Shanghai after 1999; or
- She was arrested and detained and had to report to police once a week after her release from detention.
14. The Tribunal did not accept the applicant had a well-founded fear of persecution for a Convention reason.”
The Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant participated in the Panel Advice Scheme.
The Applicant confirmed that she relied on the grounds of her application filed on 10 October 2007.
The grounds of the application are expressed to be as follows:
1. The Refugee Review Tribunal failed to explain, in the form of a document, the reason why the Tribunal considered some particulars of the information relevant to the matter.
2. It is not reasonable for the Tribunal to conclude that I did not practice Falun Gong in China for the reason of my lack of knowledge about Falun Gong.
3. The Second Respondent made the decision without considering the correct relevant information in relation to current situation about Falun Gong in China.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of her application generally.
Ground 1 – “The Refugee Review Tribunal failed to explain, in the form of a document, the reason why the Tribunal considered some particulars of the information relevant to the matter”
Ground 1 is not supported by evidence or particulars.
The Applicant was asked by the Court what she meant by ground 1 and she replied that she felt the Tribunal assumed she was lying and she was not happy about that. Otherwise, the Applicant made no meaningful submission in support of this ground.
To the extent that ground 1 cavils with the credibility findings of the Tribunal, such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1).
A fair reading of the Tribunal’s decision makes clear that the Tribunal explored the Applicant’s claims with her at a hearing and noted matters of concern about her evidence that it put to her and noted her responses. The Tribunal found that the Applicant’s knowledge of the practices and beliefs of Falun Gong “were poor and not consistent with her claim that she had practiced for a number of years”. The Tribunal also identified inconsistencies in the Applicant’s oral evidence. The Tribunal noted however, it did not accept the Applicant’s explanations about matters of concern put to the Applicant.
Ultimately, the Tribunal found the Applicant not to be a credible witness and comprehensively rejected her claims of ever having been a Falun Gong practitioner and suffering persecution for that reason. The Tribunal did not accept that the Applicant has a “genuine fear of persecution” and did not accept that if she were to return to China she would face a real chance of persecution for any Convention-related reason.
The Tribunal’s findings and conclusions, including its adverse credibility finding, were open to it on the evidence and material before it and for which it provided reasons. The credibility of the Applicant is a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
If ground 1 is intended to contend that the Tribunal failed to comply with its obligations under s.424A(1) of the Act, a fair reading of the Tribunal’s decision does not support such a contention. The Tribunal’s reasons for affirming the decision under review were based on the Applicant’s evidence given at the hearing. Such information does not enliven the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.
Similarly, the independent country information to which the Tribunal referred is information excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act. To the extent that the Tribunal preferred independent country information identified by it over the Applicant’s evidence is a finding open to the Tribunal on the evidence and material before it and for which it provided reasons.
Accordingly, ground 1 is not made out.
Ground 2 – “It is not reasonable for the Tribunal to conclude that I did not practice Falun Gong in China for the reason of my lack of knowledge about Falun Gong”
Ground 2 is not supported by particulars, evidence or submissions.
Ground 2 appears to be no more than a disagreement with the adverse credibility findings made by the Tribunal in respect of the Applicant because of her lack of knowledge about Falun Gong.
A fair reading of the Tribunal’s decision makes clear that the Tribunal explored with the Applicant her knowledge about Falun Gong symbols, beliefs and practices. The Tribunal was not satisfied by the Applicant’s explanation that she could not remember the exercises because she had not practiced Falun Gong since 2003.
As stated above in these Reasons, the Tribunal’s findings and conclusions, including its adverse credibility findings, were open to it on the evidence and material before it and for which it provided reasons.
Accordingly, ground 2 is not made out.
Ground 3 – “The Second Respondent made the decision without considering the correct relevant information in relation to current situation about Falun Gong in China.”
Ground 3 is not supported by particulars, evidence or submissions.
The Applicant confirmed to the Court that there was no country information given by her to the Tribunal for the purposes of her review.
The Tribunal identified country information to which it had regard and which it found not to support the Applicant’s claims of practicing Falun Gong in a park in 2002 after Falun Gong was banned. The Tribunal noted the Applicant’s explanation, however, was not satisfied by it. That finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.
It is a matter for the Tribunal the independent country information to which it has regard and the weight that it gives such information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (“NAHI”)). Even if the independent country information is not true it is not a jurisdictional error on the part of the Tribunal to base its decision on that independent country information (NAHI at [11]).
Accordingly ground 3 is not made out.
Conclusion
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; put to the Applicant matters of concern about her evidence and noted the Applicant’s responses. The Tribunal made findings based on the evidence and material before it. Those findings of fact, including adverse credibility findings, were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to those findings and made conclusions based on the findings made by it on the evidence and material before it.
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 proceeding before this Court is dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 15 April 2008
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