SZLOI v Minister for Immigration
[2008] FMCA 497
•17 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLOI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 497 |
| 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; 474; pt.8 div.2 |
| Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal: Ex parte H (2001) 75 ALJR 982 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 |
| Applicant: | SZLOI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3336 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 17 April 2008 |
| Date of last submission: | 17 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2008 |
REPRESENTATION
| Applicant appeared in person with a Mandarin interpreter |
| Counsel for the Respondent: | Mr H. Bevan |
| Solicitors for the Respondent: | Ms N. Tonul, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3336 of 2007
| SZLOI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
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 25 September 2007 and handed down on 4 October 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 21 March 2007 having departed legally from Shenyang Taoxian International Airport on a passport issued in his own name and a visitor (TR-676) visa issued on 16 February 2007.
On 28 March 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 to be a Falun Gong practitioner who had been subjected to violence by police in China in order to force the Applicant to give up his practice of Falun Gong. The Applicant claimed that in China he is not allowed to work and is afraid of being at home. The Applicant claimed that when he returned to China he would be forced to give up Falun Gong, thereby causing him pain, and would be unable to find employment and arrested.
On 22 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 25 June 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further written material in support of the review application. On 25 September 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 29 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 31 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. The letter invited the Applicant to attend a hearing on 6 September 2007 to give oral evidence and present arguments. The Applicant attended that hearing and gave oral evidence.
On 6 September 2007, the Applicant gave oral evidence before the Tribunal in which the Applicant expanded upon his written claims. The Tribunal noted in its decision record that it discussed with the Applicant his family life; his employment in China; his alleged introduction to Falun Gong in 2002; his alleged practice of Falun Gong in China and Australia; his travel to Singapore, Malaysia and Germany in 2006; and, his knowledge of Falun Gong.
The Tribunal noted that the Applicant made a further claim at the hearing that he was arrested in October 2002 and detained for 15 days.
The Tribunal found that the Applicant “knew very little about Falun Gong” and was unable to name or describe any of the exercises and was unable to name any of Master Li’s books. The Tribunal noted the Applicant’s explanation that he had forgotten, that information. However, the Tribunal found it “implausible that a person who has practiced Falun Gong since 2002 would be unable to name or describe any of the five exercises involved in the practice of Falun Gong”.
The Tribunal was not satisfied that the Applicant was ever involved in the practice of Falun Gong in China or in Australia. The Tribunal rejected the Applicant’s claims of being arrested, detained and losing his job in 2002 because of Falun Gong practice. The Tribunal concluded that it was not satisfied that the Applicant would face persecution if he were to return to China for the reason of his alleged Falun Gong practice.
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 of the amended application filed on 19 December 2007. Those grounds are expressed to be as follows:
“1. The Tribunal had bias against me and made a decision on my application based on the officer’s assumption. The [Tribunal] failed to consider the claims of my application.
2. The Tribunal failed to refer to proper independent information for the consideration of my application.
3. The Tribunal failed to assess the chance of my persecution on my return to China.”
For the sake of completeness, the grounds identified in the Applicant’s initiating application, filed on 29 October 2007, were bare assertions of error unsupported by particulars and did not disclose any error capable of review by this Court.
Each of the grounds of the amended application was interpreted for the Applicant’s assistance and he was invited to make submissions in support of the grounds and in support of his application generally. The Applicant made no submissions in support of any of the grounds or in support of his application generally.
Ground 1
Ground 1 is not supported by particulars, evidence or submissions. The Court asked the Applicant what were the claims that he contended the Tribunal failed to consider. The Applicant said he could not answer and had nothing to say.
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant; noted exchanges it had with the Applicant about the Applicant’s evidence; made findings that were open to it on the evidence and material before it; reached conclusions based on its findings; and, applied the correct law to its findings in reaching those conclusions.
A fair reading of the Tribunal’s decision does not support the Applicant’s contention that the Tribunal failed to consider the Applicant’s claims.
The allegation of bias in ground 1 is not supported by evidence or particulars. Ground 1 appears to assert that the Tribunal was biased because it made its decision “based on the officer’s assumption”.
However, as is submitted in the excellent written submissions of counsel for the First Respondent, Mr Bevan, an inference of bias cannot be drawn from the mere fact of adverse findings in the Tribunal’s reasons (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102).
In the circumstances, there is nothing to support an allegation of actual bias that the Tribunal had a pre-existing state of mind such as to render the decision maker unable or unwilling to undertake any proper evaluation of the relevant evidence (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507). Further, there is nothing to suggest that a fair minded lay-observer, informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided (Re Refugee Review Tribunal: Ex parte H (2001) 75 ALJR 982).
A fair reading of the Tribunal’s decision does not suggest that it approached its task other than with a mind open to persuasion.
Accordingly, ground 1 is not made out.
Ground 2
This ground is not supported by particulars, evidence or submissions.
The Applicant was asked by the Court whether there was any independent information in the nature of documents that he gave to the Tribunal that the Tribunal failed to consider. The Applicant replied that there were none. Otherwise, the Applicant stated he had nothing to say in support of this ground.
The Tribunal did not refer to any independent information in making its decision. It is not obliged to do so. At the heart of the Tribunal’s affirming of the decision under review was the Applicant’s lack of knowledge about Falun Gong and the Applicant’s failure to satisfy the Tribunal that he had a well-founded fear of persecution in China by reason of being a Falun Gong practitioner.
As stated above in these Reasons, the Tribunal’s findings and conclusions were open to it on the evidence before it and for which it provided reasons.
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 is not supported by particulars, evidence or submissions.
A fair reading of the Tribunal’s decision record does not support the Applicant’s contention that the Tribunal failed to assess his chance of persecution if he were to return to China.
A fair reading of the Tribunal decision makes clear that the Tribunal was not satisfied that the Applicant is a genuine Falun Gong practitioner or that he is regarded by the Chinese authorities as a Falun Gong practitioner. The Tribunal concluded that “Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason on his return to China”. In reaching that conclusion, the Tribunal applied the correct law to the facts as it found them to be.
Accordingly, ground 3 is not made out.
Conclusion
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 forty-two (42) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 17 April 2008
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