SZLNY v Minister for Immigration
[2008] FMCA 441
•10 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLNY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 441 |
| 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 a citizen of China claiming fear of persecution on the ground of being a member of a particular social group – no reviewable error. |
| Migration Act 1958 (Cth), s.476 |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10] Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 4242 |
| Applicant: | SZLNY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3314 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 March 2008 |
| Date of Last Submission: | 10 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2008 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondents costs fixed in the sum of $3000.00 and I allow 3 months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3314 of 2007
| SZLNY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of the People's Republic of China. She asks the Court to issue a writ of certiorari setting aside a decision of the Refugee Review Tribunal.
The Tribunal handed down a decision on 25 September 2007 affirming a decision of a delegate of the Minister not to grant her a protection visa.
The applicant claims that the Tribunal made several errors in making the decision to refuse her application for a visa. In her application she also claimed that the Tribunal did not carefully consider the real situation in China in relation to Falun Gong practitioners. She further claims in her application that the Tribunal did not adequately consider the pressures of work in Australia which the applicant must face.
To understand these claims, it is necessary to look at the background of the application. The applicant arrived in Australia on 25 April 2007. She applied to the Department of Immigration and Citizenship for a protection visa on 30 April. A delegate of the Minister refused her application for a visa on 23 May 2007. The delegate noted that the applicant is a national of China who claimed to be a Falun Gong practitioner. The delegate noted the applicant's claim to have been detained in a detention centre and mistreated whilst she was there. The delegate was willing to accept that the applicant was a Falun Gong practitioner, but did not consider that the applicant was a high profile practitioner. The delegate considered advice from the Australian Department of Foreign Affairs and Trade indicating that non-core Falun Gong members are unlikely to be considered adversely by the authorities and found that her chance of being persecuted was remote. The delegate also found that the applicant was able to acquire a valid passport in her own name in October 2006 and was able to leave China legally in April 2007.
The delegate did not accept the applicant's claim to have bribed a high official to obtain a passport and found that her success in obtaining a passport and her ability to leave China indicated that she was not of interest to the Chinese authorities when she departed China. The delegate considered that the applicant's success in obtaining a passport cast doubt on her claim that she was arrested and imprisoned some time after 1999. The delegate noted that the applicant had not claimed to have joined any Falun Gong group in Australia and considered that this would make it unlikely that the applicant has attracted the adverse attention of the Chinese authorities. The delegate found it highly unlikely that Chinese authorities would have an adverse interest in the applicant if she should return to China and refused the application for a protection (Class XA) visa[1].
[1] See Court Book at page 39-40
The applicant applied to the Refugee Review Tribunal on 22 June 2007 for a review of the delegate's decision. The applicant did not provide any other documentary evidence to the Tribunal with her application. On 4 July 2007 the Tribunal wrote to the applicant inviting her to attend a hearing on 29 August 2007. The applicant completed the response to hearing invitation and forwarded that document to the Tribunal. She indicated that she wished to attend the hearing with an interpreter in the Mandarin language. The applicant attended the hearing on 29 August and gave evidence with the assistance of a Mandarin interpreter. She produced her passport issued by the People's Republic of China.
The Tribunal signed its decision on 31 August 2007 and handed its decision down on 25 September. A copy of the Tribunal decision record can be found in the Court Book at pages 69 through to 79. The Tribunal summarised the applicant's written claims and noted that the applicant claimed to fear persecution as a Falun Gong practitioner in China. The Tribunal noted the applicant's claim that she was detained for six months in a Heilong Jiang detention centre where she suffered ill-treatment. The Tribunal noted that after the applicant was released she knew that she faced a risk of again being detained and claimed that she bribed a government official to obtain a passport.
The Tribunal asked the applicant a number of questions at the hearing and set out a summary of the applicant's evidence. The Tribunal also referred to independent country information about Falun Gong and that information is described at pages 75 and 76 of the Court Book. The Tribunal's findings and reasons can be found at pages 77 and 78. The Tribunal accepted that the applicant is a citizen of the People's Republic of China and based that finding on the applicant's passport which was submitted at the hearing. The Tribunal considered the applicant's claim to fear harm at the hands of the authorities as a Falun Gong practitioner. The Tribunal did not accept that claim. The Tribunal said:
In the present case, having considered the applicant's evidence at the hearing, I am not satisfied that she is or ever has been a Falun Gong practitioner in China or in Australia. The applicant's oral evidence concerning her alleged involvement with Falun Gong was notably vague, confused and variable. At no point did it reflect any personal or authentic knowledge of Falun Gong of the kind which might reasonably be expected of a genuine Falun Gong practitioner. She gave the clear impression of having gained a small amount of information about the subject perhaps from the official Falun Gong website. Repeated attempts to discover the nature of her claimed Falun Gong practice in China and in Australia proved fruitless[2].
[2] See Court Book at page 77
The Tribunal went on to find that it was not satisfied that the applicant was or ever had been a Falun Gong practitioner and was therefore not satisfied that there was a real chance that the applicant would suffer serious harm amounting to persecution in China for that reason. The Tribunal noted that the applicant made no claims of feared persecution in China for reasons other than her claimed Falun Gong practice. The Tribunal was not, therefore, satisfied that the applicant had a
well-founded fear of persecution for a Convention reason if she were to return to China either at the time of the hearing or in the reasonably foreseeable future. Accordingly, 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 her a protection (Class XA) visa.
The applicant commenced proceedings for judicial review of the Tribunal decision by filing application and an affidavit in support on 26 October 2007. It was in that application that she asked the Court to issue a writ of certiorari quashing the Tribunal decision. She set out three grounds:
(1)The Refugee Review Tribunal made several judicial errors in making the decision to refuse the applicant's application for a protection visa.
(2)The Refugee Review Tribunal did not carefully consider the real situation in China in relation to Falun Gong practitioners.
(3)The Refugee Review Tribunal did not adequately consider the pressures of work in Australia which the applicant must face.
The lawyers for the Minister filed a response on 2 November 2007 contending that the grounds of the applicant's application did not raise any allegation of jurisdictional error on the part of the Refugee Review Tribunal. The lawyers for the Minister indicated that the Minister opposed all orders sought by the applicant on the basis that her application did not show any reasonable cause of action.
The applicant did not file any written outline of submissions, but attended court to make oral submissions with the assistance of an interpreter in the Mandarin language. When asked to expand upon her first ground claiming several jurisdictional errors by the RRT, the applicant said that this was because she had told the truth to the Tribunal but the Tribunal still rejected her. She said that she asked the Australian government to give her an opportunity. When asked to expand upon her second ground, namely that the Refugee Review Tribunal did not carefully consider the real situation in China in relation to Falun Gong practitioners, the applicant said that the Falun Gong practitioners had suffered a lot in China and that was why they fled and asked the Australian government for protection. When asked to expand upon the third ground of her application, which says that the Tribunal did not adequately consider the pressures of work in Australia which the applicant must face, the applicant was not aware what that ground meant.
I accept the fact that as the applicant does not speak, read or write English, then some other person must have prepared the application for her. The applicant went on to say that she had asked for protection in Australia but the Tribunal and the United Nations, which should have protected her, had tried to drive her and other people back to China. When asked to speak in support of her application, the applicant said that she just asked the Australian government to protect her and to give her a last chance.
The lawyers for the Minister have filed a written outline of submissions answering each of the three grounds. They submit there is no jurisdictional error in the Tribunal's decision. The lawyers for the Minister submit that the applicant's ground 1 is no more than a bald assertion of error without any particulars. The Minister also submits that grounds 2 and 3 of the application were completely without merit and sought to cavil with the findings of fact made by the Tribunal. This of course is no part of the function of the Court in judicial review proceedings. The Court was referred to the decisions of NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 87 ALR 412 at 420 per Mason CJ, and Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 4242.
In considering the applicant's grounds, ground 1 alleges several judicial errors which is clearly a typing error and means jurisdictional errors by the Refugee Review Tribunal. As was submitted, the applicant does not particularise these errors and it is difficult to identify what they might be. The applicant's explanation is that she told the truth but the Tribunal did not believe her. An adverse decision does not itself establish jurisdictional error. The applicant's first ground is therefore no more than cavilling at the Tribunal's adverse finding.
The second ground claims that the Tribunal did not carefully consider the real situation in China in relation to Falun Gong practitioners. This, as was submitted, appears to be a challenge to the Tribunal's factual findings and is an attempt by the applicant to obtain merits review of the Tribunal decision. That is not available. In any event, the Tribunal did consider the situation of Falun Gong practitioners by looking at independent country information. But the reason why the Tribunal did not grant the application is a reason of credibility. The Tribunal did not accept the applicant's claims.
The third ground in the application is a claim that the Tribunal did not adequately consider the pressures of work in Australia which the applicant must face. The applicant did not know what that ground meant and if it refers to the fact that the Tribunal pointed out that the applicant had not made any claim of having practised Falun Gong since she arrived in Australia, the ground is no more than a challenge to the Tribunal's factual findings; in other words, it is an attempt at merits review. I note that the Tribunal was not satisfied that the applicant was or ever had been a Falun Gong practitioner. The Minister's delegate said at page 39 that the delegate was willing to accept that the applicant was a Falun Gong practitioner but not a high profile one in danger.
In the circumstances I am not satisfied though that the applicant was taken unawares by that finding. The delegate's decision was in fact a substantial rebuttal of the applicant's claims and the applicant should well have been aware that her entire claim to seek protection in Australia as a Falun Gong practitioner was in issue. The applicant has not made out any jurisdictional error. She is not legally represented and I have considered the Tribunal decision independently of the applicant's claims and independently of the Minister's submissions. I am not satisfied that any jurisdictional error has been demonstrated. It follows that the Tribunal decision is a privative clause decision and not subject to relief in the nature of certiorari which the applicant claims. It follows, therefore, that the application must be dismissed.
The applicant has been unsuccessful in her claim and the Minister who has been legally represented has been successful. This is an appropriate matter for an order for costs in favour of the successful respondent. The amount sought is $3000. That is, if I may say so, a relatively modest sum and a figure well within the range of costs envisaged by the Federal Magistrates Court Rules. It is an appropriate figure to make. The applicant, however, says that she is a refugee and has no money. She says that she is not working. The applicant should have been in a position where her bridging visa would have allowed her to work as she applied for a protection visa within a week of having arrived in Australia. However, being allowed to work and being able to work are two different matters. Not having funds to meet an order for costs is not a good reason in this jurisdiction for the Court not making an order. It is a matter that I consider insofar as time to pay is concerned and I will allow three months to pay.
A sealed copy of the orders which I have made today will be posted to the parties within the next couple of days. I require a transcript of my reasons for this decision and I can advise that a written copy of the reasons for decision will be made available in the mail within the next 10 to 14 days. I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 7 April 2008
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