SZLNE v Minister for Immigration
[2008] FMCA 449
•9 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLNE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 449 |
| 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; 474; pt.8 div.2 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 |
| Applicant: | SZLNE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3245 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 9 April 2008 |
| Date of last submission: | 9 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2008 |
REPRESENTATION
| The Applicant appeared on his own behalf with a Mandarin interpreter |
| Solicitors for the Respondent: | Mr M. Snell, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3245 of 2007
| SZLNE |
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 23 August 2007 and handed down on 13 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 27 April 2007 having departed legally from Beijing Airport on a passport issued in his own name and a visitor visa.
On 2 May 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 his protection visa application, the Applicant claimed that he feared persecution by the Chinese authorities for his continued practice of Falun Gong following its ban in 1999. The Applicant claimed he was “called to have brain washing classes” in 1999 and a fellow Falun Gong practitioner was sentenced to three years imprisonment. The Applicant claimed he was fired from his job in December 2003, received police attention in late 2006 for his promotion of Falun Gong in his new workplace, and was arrested and detained in January 2007 for four days by police. The Applicant claimed his wife paid money for his release following which he and his wife organised to flee to Australia.
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”).
On 21 July 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material/provided the following documents in support of the review application. On 23 August 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 18 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 12 July 2007 the Tribunal wrote to the Applicant informing him 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 oral evidence before the Tribunal.
Following the hearing, the Tribunal wrote to the Applicant on 7 August 2007 identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”).
On 21 August 2007 the Applicant responded to the s.424A Letter.
The Tribunal’s decision record discloses that it identified with particularity the claims made by the Applicant in support of his protection visa application and further oral claims made by him at the hearing. The Tribunal noted exchanges it had with the Applicant about his evidence and noted matters of concern that it put to the Applicant and noted his responses.
The Tribunal found that the Applicant was not a credible witness.
In particular, the Tribunal identified a claim made by the Applicant for the first time at the hearing about software he developed that allowed a “freedom gate” to access a website about Falun Gong, resulting in the confiscation of his computer by police and his detention for four days. The Tribunal noted that the Applicant claimed his computer contained “anti-government material” and information that was not available in China.
The Tribunal comprehensively rejected the Applicant’s claims about having been fired from his job in China for suspicion of being a Falun Gong practitioner, and was not satisfied that the Applicant was “under suspicion because of any suspected association with Falun Gong”. The Tribunal also found that the Applicant did not leave his place of employment for any Convention-related reason.
The Tribunal put to the Applicant in writing that the Applicant’s new claim of having been arrested in January 2007 and his computer confiscated because it contained anti-government material was fabricated. The Tribunal noted the Applicant’s response, however, found that the Applicant was of no interest to authorities “because he was involved in Falun Gong, because of his anti-government political views (actual or imputed), or because he had any anti-government material or unauthorised material on his computer, or for any other Convention-related reason”.
The Tribunal noted the Applicant’s further new claim that since his departure from China his wife has been questioned by the “police/PSB and the travel agency”, and that his wife had been suspended from her job. However, the Tribunal had a copy of a letter sent to the Australian consulate in Beijing dated 11 May 2007 expressing concern that the Applicant may have been illegally detained in Australia. The Tribunal gave the Applicant a copy of this letter as an attachment to its s.424A Letter and put to the Applicant that concerns in China about his whereabouts may be because it was thought he had been illegally detained in Australia and not because he was of interest to the authorities in China for any Convention-related reason. The Tribunal noted that the Applicant did not respond to this information and accordingly found that his wife’s suspension from her job and approaches made to her by authorities were not Convention-related.
The Tribunal was not satisfied that the Applicant was a Falun Gong practitioner in China, or that he had been persecuted in the past for that reason. The Tribunal found that the Applicant “was not only not a Falun Gong practitioner in China but also that such views were not imputed to him”. The Tribunal rejected the Applicant’s claim of arrest and detention in January 2007 on suspicion of having an association with Falun Gong or for any other Convention-related reason.
The Tribunal also considered whether or not the Applicant had a well-founded fear of persecution by reason of any political opinion or imputed political opinion. The Tribunal noted that “no evidence whatsoever was provided to support such a claim, nor did the Applicant suggest that he had been involved in any other activities that could be regarded as political activities in China.” The Tribunal was satisfied that the Applicant would not be involved in “actual or imputed political activities if he returned to China, now or in the reasonably foreseeable future, and is satisfied that he does not have a well-founded fear of serious harm amounting to persecution on this basis”.
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 has participated in the Panel Advice Scheme.
The Applicant confirmed that he relied on the grounds in an amended application filed on 31 December 2007. Those grounds are as follows:
“1. The Tribunal failed to consider the information in reply of S424A letter. The Tribunal failed to consider my claims because of the bias against me.
2. The Tribunal failed to refer to relevant independent information for the consideration of my application, the Tribunal referred to wrong independent country information.
3. The Tribunal failed assess the chance of my being persecuted on my return to China.”
Ground 1 – “The Tribunal failed to consider the information in reply of S424A letter. The Tribunal failed to consider my claims because of the bias against me Ground 1 is not supported by particulars or evidence”.
In relation to the allegation of bias, the Applicant stated that the Tribunal only asked him questions to which he could answer yes or no and that he was not allowed to speak freely. No transcript of the Tribunal hearing or other evidence was provided by the Applicant in support of these complaints, despite having been directed to file and serve any such evidence by 7 January 2008.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal asked many open-ended questions and noted the Applicant’s often expansive responses. Further, before it closed the hearing, the Tribunal noted that it asked the Applicant, if there were “any other claims or matters he wished to put before the tribunal”. The Tribunal noted that the Applicant “thanked the Tribunal for listening to his claims”. The Tribunal noted that when it asked the Applicant “whether he had any new claims” the Applicant referred only to claims that had previously been mentioned.
Otherwise, a fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its decision other than with a mind open to persuasion.
Accordingly, the allegation that the Tribunal failed to consider the Applicant’s claims because of bias is not made out.
In relation to the contention in ground 1 that the Tribunal failed to consider the information in the Applicant’s response to the s.424A Letter, a fair reading of the Tribunal’s decision does not support such a contention. The Tribunal noted with particularity the Applicant’s responses to matters put in its s.424A Letter. Moreover, the adverse findings made by the Tribunal in relation to those matters were in accordance with those foreshadowed in the s.424A Letter if the Tribunal was not satisfied by the Applicant’s responses. The findings made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
In oral submissions to the Court, the Applicant referred, in particular, to information in his response about the reason he was able to obtain a valid passport and leave China without difficulty as being information not referred to by the Tribunal.
A fair reading of the Tribunal’s decision makes clear that the Tribunal did consider the Applicant’s explanation. However, the Tribunal was not satisfied on the Applicant’s evidence alone and preferred the country information before it that suggested that, if indeed the Applicant had been of interest to the authorities by reason of being a Falun Gong practitioner in China, he would not have been allowed to leave China. The independent country information to which the Tribunal had regard was given to the Applicant in writing by the Tribunal in its s.424A Letter.
It is a matter for the Tribunal the independent country information to which it has regard and the weight it gives such information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11] (“NAHI”)).
The Applicant was unable to identify any other information in his reply to the s.424A Letter that the Tribunal failed to consider.
Accordingly, ground 1 is not made out.
Ground 2 – “The Tribunal failed to refer to relevant independent information for the consideration of my application, the Tribunal referred to wrong independent country information”
In relation to the contention in ground 2 that the Tribunal failed to refer to “relevant information”, the Applicant informed the Court that there was no independent information provided by him to the Tribunal.
There are no other particulars or evidence to identify what may be the “relevant independent information” to which the Tribunal failed to refer. Certainly, the independent country information referred to by the Tribunal in its s.424A Letter is relevant independent country information.
To the extent that ground 2 contends that “the Tribunal referred to wrong independent information”, the only information identified by the Applicant to this Court was the letter from China International Travel Service dated 11 May 2007 to the Australian General Consulate in Beijing about the possible detention of the Applicant in Australia.
However, the letter from China International Travel Service was given to the Applicant with the s.424A Letter and its relevance identified as follows:
“- You claimed at the hearing that the PSB and your travel agent had been looking for you and your wife had been suspended from her job in a hospital. However, the Tribunal has before it a letter from your travel agent dated 11 May 2007, which indicates they were concerned because you were apparently illegally detained in Australia (copy attached):
- Subject to any comments you may make, and as was put to you by the Tribunal, and the reason for why there was concern about your whereabouts could well be because you failed to return from your scheduled visit to Australia, and they thought you were illegally detained here, and not because you are of any Convention related interest to the authorities in China.”
As referred to above in these Reasons, the Applicant did not respond to this information in his written reply dated 20 August 2007.
The Tribunal found that the Applicant was not of interest to the authorities in China for any Convention-related reason and rejected the Applicant’s claim that any approach by authorities to his wife in China or suspension from her job was because of the Applicant. That finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.
As stated above in these Reasons, it is matter for the Tribunal the independent information to which it has regard and the weight it gives such information (NAHI).
Accordingly, ground 2 is not made out.
Ground 3 – “The Tribunal failed assess the chance of my being persecuted on my return to China.”
Ground 3 is unsupported by particulars and no relevant submissions were made by the Applicant in support of it.
A fair reading of the Tribunal’s decision does not support the contention that the Tribunal failed to assess the Applicant’s chance of persecution if he were to return to China.
As stated above in these Reasons, the Tribunal made findings that were open to it on the evidence and material before it and for which it provided reasons. The Tribunal applied the correct law to conclusions it reached based on the findings of fact it had made.
In particular, the Tribunal was satisfied “that there is not a real chance that the Applicant would be subject to serious harm amounting to persecution for a Convention reason if he returns to China, either now or in the foreseeable future, and finds that he is not a refugee”.
Accordingly, ground 3 is not made out.
Conclusion
The Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
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 fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 9 April 2008
0
0
2