SZLLR v Minister for Immigration
[2008] FMCA 396
•18 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLLR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 396 |
| 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 “SZLLR”. |
| Migration Act 1958 (Cth), ss.91X, 424 |
| Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZFDO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192 VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 |
| Applicant: | SZLLR |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3141 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 18 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter. |
| Solicitors for the Respondents: | Mr M D Snell of Sparke Helmore |
ORDERS
The application filed on 10 October 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3141 of 2007
| SZLLR |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is from the Luwan District, Shanghai, People’s Republic of China and states that he was born in July 1963. The applicant provided very little personal details confining his application to his adherence to the practice of Falun Daffa which commenced in 1997. He claims that he helped organise conferences in Shanghai which instructed fellow practitioners on the Falun Daffa disciplines.
He claims that in February 2003 he went to Beijing to make presentations to the Central Government in order to safeguard Falun Daffa. As a consequence, in March of that year the police from Shanghai arrested him and held him at the Shanghai Luwanqu police station for one month. He was then transferred to the Shanghai detention centre for a further six months. He claims that in the detention centre, prison guards instigated that other inmates to beat and scold him. During this period he suffered from gallstones and was not able to eat but the prison guards ordered other inmates to force feed him claiming that the applicant was pretending to be ill. He claims the guards stripped him and forced him to stand outside in the cold weather as part of a brain washing procedure.
He states that he was released in September 2003 and realised that he would be returned to gaol if he was to stay in China so he bribed a powerful government officer to issue a passport and to help him apply for a visa to Australia. Although the applicant was issued with a valid passport in his own name in 2004. The reason for this was that the year 2004 was the year following his claimed detention and persecution because of his Falun Gong beliefs and practice he did not leave China and seek refugee status in Australia until March 2007.
The applicant arrived in Australia on 18 March 2007 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) Visa on 21 March 2007. The delegate of the Minister refused to grant a visa on 18 April 2007 and the applicant applied to the Tribunal on
20 June 2007for a review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 24 August 2007 in a decision of
T. Delofski (RRT reference number 071513859) which is the decision that is the subject of judicial review before this Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document is the only evidence before the Court.
The application filed on 10 August 2007 contains two un-particularised grounds of review which state:
1. The Refugee Review Tribunal has not taken or adequately taken into consideration the applicant’s claim that he would face a risk of being prosecuted by Chinese Government if returned to China.
2. The Second Respondent made the decision without considering the correct relevant information in China. For example, the Tribunal considers that it is unlikely that the Chinese Authorities would have issued the applicant with a valid passport in 2004 and allowed him to travel to Australia in 2007 by bring a “powerful government official”.
The respondents’ solicitors filed a response on 6 November 2007 indicating that he relied upon the following grounds in defence of the application:
1. The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal handed down on 13 September 2007.
2. The application for review does not raise an arguable case for the relief claimed pursuant to Part 44.12 of the Federal Magistrates Court Rules and accordingly the application should be dismissed.
Consideration
At the first court date directions hearing, the applicant indicated to the Court that he 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 his appeal. The applicant was allocated a panel advisor and although the panel advisor was unable to contact the applicant, advice was prepared from the Court Book and the hearing tapes provided to the advisor. This was forwarded to the applicant by mail at the address nominated by the applicant for receiving mail.
The applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by
21 December 2007. The applicant was also required to file and serve a short written outline of submissions and a list of authorities 14 days prior to the scheduled hearing. Neither of these orders were complied with.
The court file contains a copy of the correspondence forwarded to the applicant at both his nominated residential address and the post office box nominated for receiving all correspondence. However, these documents were returned to the Court Registry containing the postal mark that the applicant was unknown at these addresses. The panel advisor forwarded written advice to the applicant by mail at his nominated addresses after being unable to contact the applicant to arrange a conference.
At the commencement of the hearing, the applicant indicated that he had not received any correspondence from the Court or the panel advisor. The applicant indicated that he had not changed his residential address but denied any knowledge of the post office box which was nominated in his application as the appropriate address to forward all correspondence. This information was provided to the Court by the applicant from the bar table during an exchange when I asked the applicant whether he wished to make any submissions in respect of his application or to respond to the written submissions prepared by the respondent solicitors in reply to the grounds stated in the applicant’s original application. The applicant indicated that he did not wish to make any submissions and denied any knowledge of the post office box for receipt of correspondence.
When advised that copies of the correspondence had been sent to his residential address, the applicant indicated that he had not received it and did not wish to make any comment. In these circumstances, I am not satisfied that anything would be achieved by placing the applicant in the witness box and requesting him to give that evidence under oath. The applicant was assisted by a competent, qualified NAATI interpreter who conveyed the respective questions to the applicant but the applicant declined to answer any questions or make any comment in support of his application.
Tribunal decision
The Tribunal had before it the Department’s case files relating to the applicant, material referred to in the delegate’s decision and oral evidence from the hearing before the Tribunal on 23 August 2007. The Tribunal considered the applicant’s claims but rejected them on the basis of adverse credibility findings. It found that the applicant was not a genuine Falun Gong practitioner as the applicant had not provided any further written evidence other than his original statement attached to his visa application. In oral evidence during the hearing, he stated that he had not practiced Falun Gong in Australia since his arrival in March 2007. When questioned about the details of his knowledge of Falun Gong, he was unable to name the third exercise or to demonstrate it. The Tribunal member noted in his reasons that this contrasted starkly with his statement that he had instructed people as to how to perform these exercises (CB 75.6).
The Tribunal found that the applicant was not a genuine Falun Gong practitioner and it did not accept his other claims in relation to his detention and resulting ill-treatment in 2003. Independent country information considered by the Tribunal indicated that it was unlikely that the Chinese authorities would issue a passport to a person in 2004 and permit him to travel to Australia in 2007 if that person was of significant adverse interest to the Chinese authorities.
The Tribunal made factual findings regarding the applicant’s credibility. These adverse credibility issues were raised by the Tribunal in the course of the hearing (CB 72.1-73.6). Accordingly, the applicant was on notice as to the nature of the issues that were under review and would be relevant to the application for judicial review.
Proceedings before this Court
At the first court date directions hearing, the Minister’s solicitors requested that this matter be listed for hearing under r.44.12 of the Federal Magistrates Court Rules 2001. As the applicant was seeking review of a Tribunal decision an application had been filed in accordance with the Court rules and the applicant appeared at the directions hearing as a self-represented litigant requiring the assistance of a Mandarin interpreter. I indicated that I would provide him with the opportunity to seek legal advice under the Court sponsored scheme and grant him leave to file an amended application after he had received that advice. Accordingly, the matter would be set down for a Show-Cause proceeding after those steps had been taken and if the applicant could establish that there were grounds of review then a full hearing of the matter would take place at the same scheduled hearing time.
The applicant was provided with orders setting out a timetable. Attached to those orders was an information sheet in the Mandarin language which explained the Court system and provided a number of important contact telephone numbers should the applicant wish to avail himself of those services. I took time to briefly explain to the applicant the course to be followed and advised him to obtain the services of a competent interpreter to interpret the contents of the orders made in Court that day so that he understood their contents and his obligations to complete the various steps set out in the timetable.
At the Show-Cause / Final Hearing, the applicant was asked to confirm whether he had filed an amended application with written submissions. The applicant indicted that he had not. The applicant was then invited to make any oral submissions in support of his application but he declined this offer. As indicated above, the applicant was asked whether he had availed himself of the services offered by the Court to participate in the panel advice scheme but he indicated that he had not received any correspondence from the Court. The applicant was advised at the first court date hearing what steps he should take to follow up the panel advice if he failed to be contacted by the scheme coordinator. The applicant offered no response to these enquiries.
The respondent solicitors had prepared written submissions in support of their response to the two identified grounds of review contained in the original application and relied upon those written submissions. When the applicant was invited to respond to any issues that arose from those written submissions, he indicated that he did not understand them and declined to respond. When I enquired whether the applicant had sought assistance to have those submissions interpreted to him, he declined to answer.
Ground one
Ground one asserts that the Tribunal did not take into consideration the applicant’s claim that he would face the risk of being persecuted by the Chinese government if he returned to China. As previously indicated, there are no particulars in support of this ground nor was there any evidence presented by the applicant by way of affidavit or oral evidence to support this claim. Mr Snell in his written submissions submits that the Tribunal’s reasons clearly state that the Tribunal did in fact consider the contents of the applicant’s claims.
The approach adopted by the Tribunal was to set out the applicant’s claims as they appeared in his written statement supporting his protection visa application. The Tribunal considered the applicant’s oral evidence at the hearing held on 23 August 2007 and considered independent country information regarding the difficulties that a Chinese national would have in obtaining a passport after coming to the adverse attention of government officials. The independent country information also addressed the Chinese authorities’ attitude towards to the practice of Falun Gong (CB 73-75.4). A fair reading of the Tribunal’s decision indicates that the applicant’s claims were considered but found to be inconsistent with the independent country information. The Tribunal also indicated its concern at the applicant’s inability to substantiate his claims at the hearing. This resulted in the Tribunal making an adverse credibility finding (CB 75).
Mr Snell submits that the inconsistencies in the applicant’s evidence do not of themselves constitute “information” for the purposes of the Act. They do not contain in their terms a rejection, denial or undermining of the applicant’s claims, a person to whom Australia owed protection obligations; see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [17].
I agree with the submissions made by Mr Snell that no jurisdictional error can be made out on the basis of this ground and that the ground cannot be sustained.
Ground two
The second ground claims that the Tribunal failed to consider the “correct relevant country information” in its findings. In support of this alleged failure the applicant challenged its finding that “it would be unlikely that the Chinese authorities would issue a valid passport to the applicant in 2004 and then allow him to travel to Australia in 2007 if he was of significant adverse interest to them” (CB 75.9). The assertion being made by the applicant is that the Tribunal either used inaccurate information, came to the wrong conclusion from the available country information or both.
Mr Snell submits that the choice and the assessment of independent country information is a factual matter for the Tribunal and relies on the authority in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13] which states:
[11] The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
[12] The appellants’ submissions asserted that the Tribunal rejected all of the appellants’ claims on the basis of ‘country information’. The Tribunal’s reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent improbability of some aspects of the first appellant’s story, inconsistencies between different parts of his story, and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility. In turn, it relied on its assessment of the first appellant’s credibility in determining whether it accepted some of the ‘country information’. Its treatment of the DFAT advice about Tamil males from Batticaloa, to which we have referred in [4], is an example. The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.
[13] In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka. The appellants complained in their written submissions that the Tribunal engaged in this exercise at all. In his oral submissions, the first appellant said that it was a legal error to base a conclusion on a hypothesis about what might happen in the future. These submissions cannot be accepted. The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a ‘mere guess’ and by relying on ‘country information’ that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
The independent country information referred to by the Tribunal related to persons who had come to the “adverse attention” of the Chinese authorities and the “International Religious Freedom Report 2005 in relation to China” with particular emphasis on the Chinese government’s repression of the Falun Gong spiritual movement. The independent country information was not specifically about the applicant but was rather “just about a class of persons”. Material of this nature falls within the exception of s.424A(3)(a) of the Act and was not required to be put to the applicant for his comment. This is supported by a number of full court decisions including: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 per Beaumont J at [66]-[71] and Merkel and Hely JJ at [138]; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [44]-[46]; QAAC 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7]-[30] and v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [11]-[16].
Mr Snell submits that the Tribunal’s conclusion that it was unlikely that the Chinese government would issue a passport to an applicant in 2004 when it had identified him as being a Falun Gong participant in the previous year and then allowing that person to use the passport in 2007 to exit the country was a finding of fact which is clearly within the Tribunal’s jurisdiction; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]. It is submitted that matters of fact including the findings in relation to credit are matters for the Tribunal and this Court cannot engage in a merits review; SZFDO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192.
I agree with the submissions made by Mr Snell in respect to the second ground of the applicant’s application and agree that this ground cannot be sustained.
The Tribunal’s “Findings and Reasons” are clearly stated in the following terms:
Apart from his statements in his application and at the Tribunal hearing, the applicant has not provided any evidence to support his claims. He said at the hearing that he had neither practiced Falun Gong nor had any contact with Falun Gong members since arriving in Australia in March 2007. He was unable to name the third Falun Gong exercise. His sequence of movements in attempting to demonstrate the third exercise bore no resemblance to the illustrated sequence of movements for the third exercise as set out in the official Falun Gong website ( This inability to name and demonstrate one of the five Falun Gong exercises contrasts starkly with his claim to have instructed others in China in how to do the exercises. Based on the evidence, the Tribunal is not satisfied that the applicant is a genuine practitioner of Falun Gong, or that he was a genuine Falun Gong practitioner in China.
Since the Tribunal does not accept that the applicant was a genuine Falun Gong practitioner in China, the Tribunal does not accept that the applicant was detained and ill-treated in 2003 as he claims, or otherwise persecuted, for reasons of his Falun Gong practice and beliefs. Based on the DFAT advice above and notwithstanding the applicant’s claim to have bribed a “powerful government official”, the Tribunal considers that it is unlikely that the Chinese authorities would have issued the applicant with a valid passport in 2004 and allowed him to travel to Australia in 2007 if he was of significant adverse interest to them. (CB 75)
These findings are clearly based on adverse credibility findings which are findings of fact and do not give rise to any jurisdictional error.
Conclusion
The applicant in these proceedings was a self-represented litigant who appeared with the assistance of a Mandarin interpreter. I am satisfied that the applicant has been provided with every opportunity available in the circumstances to present his review application. However, it is clear that he had no understanding of the issues before the Court or how he may present his case. The applicant appears to have relied upon an unidentified agent who is involved in the filing of many applications before this Court on behalf of protection visa applicants. Their original visa application recorded his postal address as a mailbox located at 226 Elizabeth Street, Surry Hills. The same address was recorded in his application for a review of the delegate’s decision of the Tribunal. The applicant did respond to the correspondence orders to that address and attended the Tribunal hearing on 23 August 2007.
In the application to this Court, a different postal address was nominated for receiving mail as Post Office K814 Haymarket, NSW, 2010. Although this is a different address from the previous applications it commonly appears in this Court as the nominated address for receiving applicants’ mail. The applicant denied any knowledge of any of these addresses. The content of the application are in a familiar formulaic template, commonly seen in this Court and associated with the post office box numbers mentioned above.
Understandably, the applicant had no comprehension of the issues before the Court or how to pursue his case. This places an obligation on the Court to independently consider whether any argument based on the material, that is, the Court Book and in particular the Tribunal’s decision, can support a claim of jurisdictional error. I am satisfied that all the issues are identified in the application have been satisfactorily addressed by Mr Snell in his written submissions. On a fair reading of the decision, 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. Consequently, 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 the application fixed in the sum of $2,500.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
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