SZLLU v Minister for Immigration
[2008] FMCA 224
•19 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLLU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 224 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of China claiming fear of persecution as a Falun Gong practitioner – no reviewable error. |
| Migration Act 1958 (Cth), s.424, 425 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 |
| Applicant: | SZLLU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3155 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 February 2008 |
| Date of Last Submission: | 19 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3155 of 2007
| SZLLU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 refusing to grant her a protection visa. She claims that the Tribunal did not follow procedures that were required to be observed, there was no evidence to justify the making of the decision and the Tribunal failed to consider the correct source of information about Falun Gong in China.
The lawyers for the Minister, who is the first respondent to the application, have filed a response asserting that the decision does not contain any jurisdictional error.
Background
The applicant arrived in Australia on 14 March 2007. She applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 19 March 2007.
A delegate of the Minister refused her application on 26 April 2007.
On 29 May the applicant applied to the Refugee Review Tribunal asking for a review of the delegate’s decision.
The Tribunal wrote to the applicant and invited her to attend a hearing of the Tribunal where she could give evidence and present arguments. The hearing took place on 2 August 2007 and the applicant attended the hearing and gave evidence.
The Tribunal Decision
The Tribunal signed its decision on 28 August and handed that decision down on 18 September 2007. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
A copy of the Tribunal decision record can be found at pp.72 through to 87 of the court book. In the Tribunal decision the Tribunal sets out the applicant’s claims and evidence and notes that the applicant claimed a fear of persecution for reason of having been a Falun Gong practitioner in China. She had begun practising in February 1997.
The applicant claimed that she was detained and sentenced to six months. She had two periods of detention during which time she was tortured. She claimed to have scarring on her hands arising from her ill treatment at the hands of the Chinese authorities.
The Tribunal noted at p.76 of the court book that the delegate of the Minister accepted that the applicant was a Falun Gong practitioner and that she might have a subjective fear of being harmed if she should return to China. However, the delegate found no objective basis for that fear and did not accept that the applicant would have been able to acquire a passport and depart from China legally if she was of serious interest to the authorities.
The delegate was of the opinion that advice from the Department of Foreign Affairs and Trade cast doubt on the applicant’s claim to have been imprisoned on two occasions.
The Tribunal set out in some detail a summary of the applicant’s evidence to the Tribunal. The applicant claimed that she feared that the Chinese police would persecute her if she returned to China because she was a Falun Gong practitioner and had been arrested and detained on three occasions and feared that it would happen again.
The Tribunal asked the applicant a number of questions about her practice of Falun Gong and about items of the Falun Gong moral code and belief system. The Tribunal asked the applicant about her history in China.
After the hearing but on that same day the Tribunal wrote to the applicant inviting her comments on potentially adverse information. The letter was dated the same day as the hearing and was headed “Invitation to comment on information in writing”. The Tribunal invited the applicant to comment on information that the Tribunal considered would, subject to any comments that she might make, be the reason or part of the reason for affirming the decision that was under review. The letter set out particulars of the information and explained why it was that the Tribunal considered that information to be relevant. In summary, the Tribunal said:
This information is relevant to the review because it could, when considered together with other aspects of your evidence, cast doubt on your credibility as a witness and the veracity of all your refugee claims[1].
The applicant did not reply to that letter.
[1] See Court Book at page 61
The Tribunal in its decision considered independent country information about the general background of Falun Gong and also the internal perspectives, including quoting from the Falun Gong publication Epoch Times.
The Tribunal also considered information contained in the delegate’s decision about passports and exit procedures from China, referring in particular to circular dated 8 November 2006 from the Department of Foreign Affairs and Trade.
The Tribunal’s findings reasons are set out at pp.83-87 of the Court Book. The Tribunal accepted that the applicant has the nationality of the People’s Republic of China based on her passport and her oral evidence.
The Tribunal noted the applicant’s claims to fear persecution from the Chinese authorities because of being a Falun Gong practitioner and to have been detained and otherwise mistreated in the past in China. However, the Tribunal was not satisfied that the applicant had given a credible account of her history. The Tribunal said:
The Tribunal found the applicant to be a witness of low credibility. Her evidence was changeable during the course of the tribunal hearing, including the introduction of new and seemingly improvised claims towards the end of the hearing and inconsistencies during the course of her evidence[2].
[2] See Court Book at page 83
The Tribunal, in fact, did not accept that the applicant had any association with Falun Gong, actual or perceived, and set out on pp.83 and 84 of the Court Book why it formed that view. The Tribunal rejected the applicant’s claims to have suffered past harm for reason of any association with Falun Gong, and did not accept that the authorities in China had any adverse interest in the applicant or had ever harmed her.
The Tribunal dismissed the applicant’s claims to be a Falun Gong practitioner and to have suffered harm as a result and did not accept that anyone would perceive her to be a Falun Gong practitioner.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision not to grant the applicant a protection (Class XA) visa.
Application for Judicial Review
In her application to this court filed on 11 October 2007, the applicant seeks both a writ of certiorari quashing the Tribunal decision and an order that the Tribunal should reconsider her application according to law.
She sets out in her application four grounds upon which she relies.
i)Procedures that were required by the migration regulations to be observed in connection with the making of the decision were not observed;
ii)The decision involved an important exercise of the power conferred by the Migration Act and regulation;
iii)There was no evidence or other materials to justify the making of the decision;
iv)The tribunal failed to consider the proper or correct source for information about Falun Gong in China.
The applicant did not file a written outline of submissions but attended court and in oral submissions asked that the court would give her another chance. She claimed that the RRT decision was wrong and felt that it was incorrect. She asked the court that her case should be judged according to migration law.
In considering the grounds of the application, it can be seen that what is set out as the second ground, namely “The decision involved an important exercise of the power conferred by the Migration Act and regulation”, is not, in fact, a ground of relief at all.
In dealing with the other three grounds that are grounds namely, 1, 3 and 4, I note first of all that the applicant complains that procedures required to be observed by the migration regulations and presumably by the Migration Act in connection with the making of a decision were not observed. The applicant has not given any particulars of these, but I have considered whether any breach of s.424A of the Migration Act can be discerned.
I note that the Tribunal wrote to the applicant on the day of the hearing, 2 August 2007, inviting her comment on certain information in a letter which was clearly intended to comply with the requirements of section 424A of the Act. The applicant did not reply to that letter or provide any comments.
It is noteworthy in my view that the Tribunal decision relies on the applicant’s own evidence to the Tribunal and independent country information, both of which are excluded from the operation of sub‑section 424A(1) or by section 424A(3).
Information from the applicant’s protection visa application, which may not necessarily be excluded by section 424A(3) was contained in the letter written by the tribunal to the applicant on 2 August 2007 inviting the applicant’s comments.
I am satisfied that no breach of section 424A has occurred.
Turning now to the Tribunal’s obligation under section 425 of the Migration Act, I note that the Tribunal wrote to the applicant and invited her to attend a hearing. The applicant attended the hearing and gave evidence and presented arguments in support of her case. She was provided with the assistance of an interpreter and there does not seem to have been anything unusual or out of the ordinary in respect of the hearing.
It is noteworthy that although the Minister’s delegate was prepared to accept that the applicant was a Falun Gong practitioner and might have some subjective fear of being harmed, the Tribunal rejected this contention and dismissed the applicant’s claim to be a Falun Gong practitioner.
The Tribunal found the applicant’s evidence not to be credible and, of course, a credibility finding is a finding of fact and so long as there is evidence upon which such a finding of fact can be made, then there can be no jurisdictional error in such a finding.
In my view there was evidence which would entitle the Tribunal to make a finding about the applicant’s credibility.
However, the court must be concerned about the requirements referred to by the High Court of Australia in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 2006 HCA 63. The High Court set out in para.35 of SZBEL the fact that the Tribunal is not confined to whatever may have been the issues that the delegate considered, that the issues that arise in relation to the decision are to be identified by the Tribunal. If the Tribunal takes no step to identify some issues other than those that the delegate considered dispositive and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are the issues arising in relation to the decision under review.
In this case whereas the delegate was satisfied the applicant was a Falun Gong practitioner with a subjective fear of harm, the Tribunal rejected that claim.
I raised that issue with Ms Nandagopal, solicitor, who appeared for the Minister, and expressed some concern that the tribunal’s section 424A letter did not necessarily make that clear to the applicant. However, my attention has been drawn to the Tribunal’s decision, where in the fourth paragraph:
The Tribunal expressed surprise that the applicant did not name the most important Falun Gong text Zhuan Falun. If she was a genuine practitioner, the applicant did not recognise that name’[3].
[3] See Court Book at page 77
Again, at page 79 of the Court Book in the first paragraph the Tribunal noted and it flagged its serious concerns about the applicant’s refugee claims and identified three particular areas. Those areas were:
(a) Serious gaps in the applicant’s knowledge of Falun Gong;
(b) Her ability to obtain and travel on a passport in her own name; and
(c) Her delay in departing China once she had a passport.
I am satisfied that the Tribunal brought to the applicant’s attention the fact that her very adherence to Falun Gong was in issue notwithstanding that that fact had been accepted by the delegate.
Again in that same paragraph, the applicant said
Her scars and the fact that she had to pay so much (more than the going rate) to leave China were proof of her Falun Gong adherence. She said she feared losing her life if she had to return to China[4].
[4] See Court Book at page 79
In my view this passage indicates the very fact of the applicant’s adherence to Falun Gong was identified by the Tribunal at the hearing as a live issue, and the applicant was given the opportunity to address that question at the hearing.
In my view the Tribunal has not departed from the concerns raised by the High Court in SZBEL and there is no breach of section 425 of the Migration Act.
The Tribunal did make it clear to the applicant that the very issue of her adherence to Falun Gong was a matter concerning the tribunal and that there was a need to address that issue.
As to the other grounds, in ground 3 the applicant said that there was no evidence or other materials to justify the making of the decision. The solicitor for the minister submits that this ground alleged error in the Tribunal’s ultimate finding and to assert bare error in the Tribunal’s ultimate conclusion without identifying any specific ground or error is to seek merits review.
I should make it clear that the Tribunal is not required to find evidence to disprove an applicant’s claims or contentions. The obligation on an applicant under section 65 of the Migration Act is to satisfy the tribunal that the applicant meets the requirements of a visa. The Tribunal does not need evidence to disprove the applicant’s claim. It follows that ground 3 must fail.
Ground 4 alleges that the Tribunal failed to consider the proper or correct source for information about Falun Gong in China. It is well established that section 424 of the Migration Act entitles the tribunal to get any information that it considers relevant.
I have been referred to the decision of the Full Court of the Federal Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 10 at 11 where their Honours held that there could be no objection in principle to the Tribunal relying on country information:
The question of the accuracy of the country information is one for the tribunal not for the court.
In my view no jurisdictional error is shown in the Tribunal deciding to rely on country information upon which it did rely. The applicant has not demonstrated any jurisdictional error.
I am mindful of the fact, however, that the applicant is not legally represented in these proceedings.
I have read through the Tribunal decision independently of the applicant’s claims in the Minister’s submissions in an effort to ascertain whether any arguable ground for jurisdictional error has been made out. I am unable to identify any jurisdictional error.
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. As such it is not subject to orders in the nature of certiorari or other relief as the applicant claims.
It follows that the application must be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 27 February 2008
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