SZLNV v Minister for Immigration & Anor
[2008] FMCA 886
•30 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLNV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 886 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant the applicant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of practising Falun Gong – credibility – merits review – no jurisdictional error in the Tribunal making a wrong finding of fact – whether Tribunal failed to observe required procedures – whether Tribunal breached the rules of natural justice – whether Tribunal did not consider the applicant’s situation – whether Tribunal lost evidence – bias – apprehended bias – impermissible challenge to the merits of a decision. PRACTICE & PROCEDURE – Tribunal to be differently constituted – doubtful whether Federal Magistrates Court has power to make an order directing the Tribunal to be differently constituted. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, 474 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 followed Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 followed Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed Abebe v Commonwealth (1999) 198 CLR 510 cited Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 followed SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 followed NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 cited SZLHM v Minister for Immigration & Citizenship [2008] FCA 754 followed Attorney-General (NSW) v Quin (1990) 170 CLR 1 followed SZHCJ v Minister for Immigration and Multicultural Affairs [2007] FCA 205 followed SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 followed SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed |
| Applicant: | SZLNV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3288 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 June 2008 |
| Date of Last Submission: | 27 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3288 of 2007
| SZLNV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision by the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was signed on
10th September 2007and handed down on 27th September 2007.
Background
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 20th February 2007. He applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 16th March 2007. The application was supported by statement headed ‘My Falun Gong Practice Experience’ and a statutory declaration in relation to his passport made on 4th April 2007.
On 24th May 2007 a delegate of the Minister refused to grant the applicant a protection visa. The delegate considered country information about Falun Gong and was satisfied that the Chinese government had severely cracked down on movements it considers to be cult and heretic organisations and had committed human rights abuses against Falun Gong practitioners. However, the delegate was not satisfied that the applicant had established that he was a Falun Gong practitioner, either in China or Australia. The delegate found that the applicant’s claims relating to his circumstances in China as a consequence of his Falun Gong beliefs and practices lacked veracity.
The applicant applied to the Refugee Review Tribunal on 12th June 2007 seeking review of the delegate’s decision.
Application to the Refugee Review Tribunal
On 12th June 2007 the Tribunal wrote to the applicant acknowledging receipt of his application for review earlier that day. On 21st June the Tribunal wrote to the applicant inviting him to attend a hearing on
29th August 2007at 10:00am to give oral evidence and present arguments. The applicant responded to the hearing invitation on
5th July, indicating that he wished to attend and would require a Mandarin interpreter. He also advised the Tribunal that he wanted a witness to give evidence at the hearing.
The applicant provided to the Tribunal 3 references dated 23rd June 2007, photographs of himself at demonstrations and a petition addressed to the Minister for Immigration and Citizenship.
Tribunal hearing
On 29th August 2007 the applicant and his witness attended a hearing before the Tribunal. He told the Tribunal that his brother-in-law introduced him to the practice of Falun Gong in January 2006.
The applicant claimed that he and his brother-in-law would practise in a store room on the company premises in which they worked in and claimed that the store room also contained DVDs and Falun Gong books placed in there by his brother-in-law and himself.
The applicant claimed that in January 2007 he and his brother-in-law were discovered practising on the company premises by company security officers and the PRC authorities. The applicant told the Tribunal that the authorities searched the store room and confiscated the DVD player, the DVDs and the books and took the applicant to the police station.
The applicant told the Tribunal that he was detained and questioned and was beaten with a rubber baton. He stated that his employer organised his release. The applicant claimed to have paid a fine and a bribe and agreed not to practise Falun Gong again.
The applicant claimed that after arriving in Australia he bribed the local police to send photographs of him in handcuffs and ankle cuffs; these photographs were sent to him by his sister. Since coming to Australia the applicant claims to have practised Falun Gong regularly.
The applicant told the Tribunal that he feared his Falun Gong activities in Australia may come to the attention of the PRC spies in Australia and that he had a real chance of being persecuted on his return to China.
Tribunal decision
The Tribunal signed its decision on 10th September 2007 and handed the decision down on 27th September. The Tribunal’s findings and reasons can be found in the Court Book at pages 77 to 82. The Tribunal accepted that the applicant is a national of the People’s Republic of China, based on the Travel Document that he produced at the hearing.
However, the Tribunal did not accept the applicant to be a witness of truth. It did not believe that the applicant and his brother-in-law kept DVDs and books in a store room on company premises as it believed it would increase the risk of discovery.
The Tribunal was not satisfied that the applicant’s explanation of his escape with ‘light punishment’ was plausible given the seriousness with which the PRC authorities regarded the practice of Falun Gong.
The applicant had claimed that his Falun Gong activities in Australia may have come to the attention of PRC spies in Australia and he feared that he had a real chance of being persecuted for this reason if he were to return to China. The Tribunal did not accept that every Falun Gong practitioner in Australia would come to the attention of Chinese spies and was not satisfied that the applicant’s activities in Australia would be of any interest to the Chinese spies. The Tribunal was not satisfied that the PRC authorities have the resources to identify or harm every one who practises Falun Gong in Australia.
The Tribunal was not satisfied that the applicant had a real chance of being persecuted because of his Falun Gong activities in Australia and therefore was not satisfied the applicant had a well founded fear of persecution for a Convention related reason if he returned to China.
The Tribunal affirmed the delegate’s decision not to grant the applicant a protection (Class XA) visa.
Application for Judicial Review
The applicant filed an application and an affidavit in support in this Court on 23rd October 2007. He has not filed an amended application. In his application, the applicant seeks the following orders:
(1)That the decision of the Tribunal be quashed;
(2)That the matter be remitted to the Tribunal differently constituted to be determined according to law; and
(3)Costs.
I would comment at this stage that I am not satisfied that it is appropriate for the Court, on remitting a matter to the Tribunal for determination according to law, to make an order requiring the Tribunal to be differently constituted. It is for the Principal Member to determine the constitution of the Tribunal. It is doubtful that the Court has the power to make such an order (see SZEPZ v Minister for Immigration & Multicultural Affairs[1]).
[1] [2006] FCAFC 107
The application contains three grounds which are as follows:
(1)Procedures that were required by law to be observed in connection with the making of Decision were not observed;
(2)A breach of the rules of natural justice occurred in connection with the making of the Decision;
(3)Particulars and grounds:
(a)The RRT delegate didn’t consider my particular situation thoroughly. He simply concluded that he didn’t believe it plausible that I (and my brother-in-law) would have kept Falun Gong DVD and books in that store where we practiced and the key was only kept by my brother-in-law because the store was used only by my brother-in-law. (Re: RRT Decision paragraph 2 of page 7). Unfortunately the delegate really didn’t understand the Chinese country’s conditions that the person who is the head of the Department will keep the key of store by himself only to the delegate made an error in his decision.
(b)My passport was collected by the Chinese guide. I was advised to apply a Travel Document in order to be used as my ID. I found an agent and told him I lost my passport so I wanted to apply a Travel Document. He asked me to pay his service fee telling me that he would act on my behalf to obtain it without problem. But the delegate thought it was plausible for me to approach the authorities from the very government I was claimed.
Submissions
The applicant did not file a written outline of submissions. He attended Court and made oral submissions.
The applicant was asked questions from the Bench about the grounds of review in his application. When asked to explain his first ground, in particular what procedures he claimed the Tribunal had not observed, the applicant replied that the Tribunal did not observe procedures because he was a Falun Gong practitioner. He complained that the Tribunal Member did not ask him about his knowledge of Falun Gong theory or practice.
The answer was not responsive to the question.
The applicant was asked to explain his second ground, which claimed that he was denied natural justice. He replied that the decision made by the Tribunal was unfair to him, because the Tribunal did not take into consideration all his oral and written evidence.
The applicant also complained about the Tribunal Member’s attitude to him during the hearing. He said that he did not know why the Member was angry at him. He complained that the Member even threw his pen under his desk.
The applicant said that he suspected that the Tribunal Member had not carefully read the documents that he submitted.
Whilst the applicant’s answer was hardly responsive to the question about his second ground of review, it more or less encompassed the matters complained of in his third ground.
The applicant was invited to make a general submission in support of his case. He said that he was not legally represented. He had received advice from a lawyer on the Refugee Review Tribunal Legal Advice Panel.
He told the Court that when he was in China he was a Falun Gong practitioner and was persecuted by the Chinese Communist Party.
He said that after he came to Australia he participated in all Falun Gong activities. He said that he was strongly opposed to what the Communist Party had done to Falun Gong practitioners.
The applicant complained that the Tribunal had found that he was a Falun Gong practitioner but he was not granted a protection visa.
When asked, he did not submit that because he was found to be a Falun Gong practitioner he should automatically be granted refugee status.
Apart from his complaint that the Tribunal had not considered the evidence carefully enough, the applicant articulated two additional grounds that were not referred to in his application.
First, he complained of bias, at least apprehended bias, on the part of the Tribunal Member. This was evidenced by:
(a)his claims about the demeanour of the Tribunal member at the hearing; and
(b)his dissatisfaction with the Tribunal decision itself.
The applicant had not produced a tape or transcript of the Tribunal hearing. He inquired whether the Court had a copy of the hearing tape and was informed that the Court did not.
Second, the applicant complained that the Tribunal had lost a document that he had submitted as part of his case. He said that he had not attended the Chinese Embassy to obtain a travel document to replace his passport, but someone had done that for him. He said that he had assistance from a migration agent for that purpose, although he conceded that he did not show that he had a migration agent assisting him when he submitted his application for review to the Refugee Review Tribunal.
The applicant said that the document was an invoice from the Chinese Embassy for the travel document, accompanied by an English translation. He said that this document would show that it was not he who had attended the Chinese Embassy, but some other person.
He claimed to have posted that document in to the Tribunal when he had posted in other documents in support of his case.
Those documents, all of which appear in the Court Book[2], are a petition to the Minister, three statements from people who claim to be Falun Gong practitioners asserting to the fact that the applicant practised Falun Gong at Campsie and had taken part in rallies and demonstrations, and a number of photographs. The applicant said that he had a copy of the original invoice and the English translation but had not brought those documents to Court.
[2] at pages 53 to 65
Submissions for the first respondent were filed in this Court on
19th June 2008. Counsel for the Minister, Mr Reilly, has summarised the applicant’s claims as follows:
The Applicant claimed to fear persecution in China for reason of his religion. He claimed to have started practising Falun Gong (FG) in January 2006 after being introduced to it by his brother in law at work; and to have been detained, questioned and beaten by the PSB on 20 January 2007, after which he came to Australia on a tour group. He claimed to have received a travel document from the Chinese consulate in Sydney because his tour group leader had kept his passport. The Applicant claimed the consulate did not know he was a FG practitioner. He claimed to have practised FG regularly in Australia, and to fear identification by PRC spies.
He further submitted that, while the Tribunal may have accepted that the applicant may have been a Falun Gong practitioner, it found that he was not a witness of truth and rejected his claims of past persecution as false.
Mr Reilly submitted that the application raises no case to answer, for these reasons:
(a)The Tribunal’s conclusion that the applicant was not credible and his claims untrue is a finding of fact par excellence (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[3]).
[3] (2000) 168 ALR 407; [2000] HCA 1 at [67]
(b)The Tribunal’s findings were open to it for the reasons it gives.
(c)The Court cannot review the merits of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[4]).
(d)There is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact (Abebe v Commonwealth[5]).
[4] (1996) 185 CLR 259 at 272
[5] (1999) 197 CLR 510 at [137]
Mr Reilly noted that the applicant claims that the Tribunal failed to observe “required procedures” (Ground 1) and breached the rules of natural justice (Ground 2), which do not apply (see Migration Act 1958, s.422B, Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat[6]; SZCIJ v Minister for Immigration and Multicultural Affairs[7]; NBKT v Minister for Immigration and Multicultural Affairs[8]).
[6] (2006) 151 FCR 214; [2006] FCAFC 61 at [66]
[7] [2006] FCAFC 62 at [7]-[8]
[8] (2006) 156 FCR 419 at [85
Counsel for the Minister further submitted that the particulars given merely argue with the Tribunal’s factual reasoning and seek merits review.
In oral submissions, Mr Reilly submitted that, as the Tribunal seemed to have accepted that the applicant was a Falun Gong practitioner, there was no obligation on the Tribunal to question him about his knowledge of Falun Gong.
Again, if the applicant wished the Court to find that there was an apprehension of bias on the part of the Tribunal, this needed to be proved. The applicant had not sought to file a transcript of the Tribunal hearing. It is a very case where bias is made out from simply reading the Tribunal’s reasons for decision.
Conclusions
It is clear that the Tribunal came to the decision that it did because it did not accept the truth of the applicant’s claims and specifically rejected the applicant as a truthful witness. This was a matter for the Tribunal and was based on its assessment of the applicant’s evidence (see Durairajasingham (supra)). The Tribunal stated:
However, for the reasons set out herein, I do not accept the present applicant is a witness of truth. I am satisfied the applicant was prepared to embellish if not entirely fabricate his claims to be owed refugee protection in Australia. I am also sufficiently satisfied the applicant is not a witness of truth such that to the extent I have not expressed a finding herein, I reject all his claims to be owed refugee protection obligations as false[9].
[9] Court Book at 77
There is no jurisdictional error in this finding.
The applicant has claimed three grounds of review in his application. His first ground claims that procedures that were required by law to be observed in connection with the making of the decision were not observed.
There was no breach of the procedure required by s.424A of the Migration Act. The matter was decided entirely on the basis of the applicant’s evidence to the Tribunal, which is specifically excluded by s.424A(3).
Again, there was no failure to comply with the procedure required by s.425 of the Act. The Tribunal wrote to the applicant on 21st June 2007 and invited him to attend a hearing on 29th August. That was more than sufficient notice. The applicant attended the hearing and was provided with the services of an interpreter in Mandarin, the language that he nominated in his response to hearing invitation. He asked the Tribunal to take evidence from a witness who also attended the hearing, and the Tribunal heard evidence from that witness. The main issue at the Tribunal hearing was the credibility of the applicant’s claims, which was the issue upon which the delegate made his decision.
The applicant’s second ground claims that a breach of the rules of natural justice occurred in connection with the making of the decision. It is well established that s.422B of the Act leaves no scope for common law natural justice (see Lay Lat (supra); SZCIJ (supra)).
In any event, there is no evidence of any denial of natural justice to the applicant.
The applicant’s third ground claims that the Tribunal (described as “the RRT delegate”) did not consider the applicant’s particular situation thoroughly and then sets out a number of matters going to the applicant’s factual claims. There is no evidence that the Tribunal did not consider a relevant claim or an integer of the applicant’s claims. The ground simply complains that the Tribunal did not accept the applicant’s evidence relating to his claim for a protection visa. This is in effect a request to the Court to embark on a review of the merits of the applicant’s claim for refugee status, which is not available on judicial review (see Wu Shan Liang (supra)).
It is no part of the function of this Court to assess the merits of the claims for refugee status being advanced by the applicant; that is the task of the Tribunal, not the Court. As Flick J stated in SZLHM v Minister for Immigration & Citizenship[10]:
It is important for those who apply to the Federal Magistrates Court seeking review of decisions of the Refugee Review Tribunal, and who subsequently seek to appeal to this Court, to understand that it is the Tribunal that resolves questions of fact. It is no part of the role of a court conducting judicial review to trespass into the realm of reviewing the merits of an administrative decision the subject of review: Attorney-General (NSW) v Quin (1990) 170 CLR 1.
[10] [2008] FCA 754 at [9]
The Federal Magistrates Court has no role to “second guess” the Tribunal on matters of fact or judgment. As Gyles J said in SZHCJ v Minister for Immigration and Multicultural Affairs[11]:
[11] [2007] FCA 205 at [3]
The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.
The applicant made a complaint to the Court about the demeanour of the Tribunal Member at the hearing, claiming that he did not know why the member would be angry with him. I take this to be a claim of apprehended bias. The applicant has not produced any evidence in support of this claim, either by submitting a transcript of the hearing or even seeking to have the tape of the hearing played in Court. It is perhaps surprising that this claim was only made for the first time at the hearing and was not mentioned in any way in the applicant’s original application to the Court, which was filed on 23rd October 2007.
An allegation of bias is a serious allegation which must be strictly proved. It is a rare and extreme case where bias will be made out purely from reading the Tribunal’s decision record (see SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[12]; SBBS v Minister for Immigration & multicultural & Indigenous Affairs[13] ).
[12] [2002] FCAFC 358 at [16]
[13] [2002] FCAFC 361 at [43]-[44]
There is no evidence of apprehended or actual bias.
The applicant has also alleged that the Tribunal somehow lost an important piece of documentary evidence which he submitted along with his other documents. He claims it was an invoice that would show that he did not attend the Chinese Embassy to obtain a travel document to replace his passport but another person.
There are some difficulties with this claim. First, the applicant only made the claim on the day of the hearing and not any time beforehand. Second, it is by no means clear that the documents, even if they were to hand, would have the probative effect that the applicant claims they would. The Tribunal decision was based on the Tribunal’s overall rejection of the applicant’s claims, and this evidence, at best, goes only to a minor part.
Third, the applicant claimed to have kept the originals of the documents but did not bring them to Court on the day of the hearing.
In my view, the applicant has not proved that he had submitted to the Tribunal some documents which were important to his case and which the Tribunal somehow lost. The other documents all appear in the Court Book.
The applicant has not made out any jurisdictional error on the part of the Tribunal. I am unable to discern any arguable case for jurisdictional error.
In the absence of jurisdictional error the Tribunal decision is a privative clause decision (Migration Act, s.474). Accordingly, it is final and conclusive and not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s.474(1)).
The application will be dismissed with costs.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 June 2008
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