SZLTU v Minister for Immigration
[2008] FMCA 456
•8 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLTU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 456 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of RRT affirming a decision of a delegate not to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his membership of Falun Gong – allegation of bias – no reviewable error – unfavourable decision by the RRT no evidence of itself of bias – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZLTU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3852 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 April 2008 |
| Date of last submission: | 8 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | Not legally represented |
| Solicitor for the Respondent: | Ms Hooper |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3852 of 2007
| SZLTU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of China who asks the Court to conduct a judicial review of a decision of the Refugee Review Tribunal handed down on 20th November 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant asks the Court to issue writs of certiorari, mandamus and prohibition quashing the decision of the Refugee Review Tribunal, requiring the Tribunal to hear and determine his application according to law and restraining the First Respondent, the Minister, from taking any action in reliance upon the Tribunal's decision.
He claims that the Tribunal has fallen into jurisdictional error by:
i)failing to consider a part of his claim, namely that he had been practising Falun Gong in Australia; and
ii)failing to comply with the requirements of s.424A of the Migration Act.
The Respondent Minister for Immigration & Citizenship opposes the orders being made.
Background
The Applicant arrived in Australia on 11th June 2007 and applied for a Protection (Class XA) visa on 5th July of that year. A delegate of the Minister refused the application on 20th July 2007.
The Applicant had claimed a fear of persecution if he were to return to China because he had practised Falun Gong since 1998. He claimed to have then been required to attend brainwashing classes in 1999 and practised Falun Gong secretly until he was detained by the police in 2005. He claimed that over a period of four days he was detained, beaten and insulted. After his release he was again in jeopardy from the police and claimed that in March 2007 they were about to charge him for attending illegal Falun Gong activities. He claimed to pay a bribe to keep him safe until he left China and travelled to Australia.
The Minister's delegate was not satisfied that the Applicant was a person of significant adverse interest to the Chinese authorities. The delegate noted that the Applicant claimed to have started practising Falun Gong in 1998 but did not claim to have practised Falun Gong whilst he was in Australia[1]. The delegate noted that the Applicant obtained a business visa to enter Australia and had no difficulty obtaining a passport and leaving China.
[1] See Court Book at page 45
On 20th July 2007 the delegate refused the Applicant's application for a protection visa.
Application to the Refugee Review Tribunal
On 24th August 2007 the Applicant applied to the Refugee Review Tribunal for a review of that decision. He did not provide any documentary evidence to the Tribunal at that stage. On
4th September 2007the Tribunal wrote to the Applicant inviting him to attend a hearing on 18th October 2007. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language.
On 29th October 2007 the Tribunal signed its decision and handed that decision down on 20th November 2007. A copy of the Tribunal decision can be found at pages 65 to 78 of the Court Book. The Tribunal sets out the Applicant's claims and evidence taken from the Department's file and considered independent country information. The Tribunal also considered the Applicant's evidence at the Tribunal hearing.
The Tribunal’s Findings and Reasons
The Tribunal's reasons and findings can be found at pages 75 to 78 of the Court Book. The Tribunal was satisfied that the Applicant's country of nationality was China for the purposes of Article 1A(2) of the Refugees Convention based on the Applicant's Chinese passport. The Tribunal noted that the Applicant claimed a fear of persecution in China for Convention-related reasons of religion, political opinion or membership of a particular social group in his claims to be an adherent of the banned Falun Gong spiritual cultivation movement.
The Tribunal accepted on the basis of country information that the treatment of some people involved in the Falun Gong movement would involve serious and systematic and discriminatory conduct. However, the Tribunal considered that the Applicant's knowledge of Falun Gong, and particularly the Falun Gong exercises, was less than rudimentary.
The Tribunal noted that the Applicant claimed not to have practised at all since he arrived in Australia and was not satisfied about his explanations as to why he had not practised. The Tribunal found the Applicant's account of his arrest, detention and release to be inconsistent, vague and implausible.
The Tribunal was not satisfied as to the Applicant's explanation for the ease with which he departed from China and travelled to Thailand on his own passport. The Tribunal noted that the Applicant claimed that he did not seek protection in Thailand or any information about seeking protection from other foreign embassies or the United Nations High Commission for Refugees because it was too hot in Thailand or because it did not suit him. The Tribunal said:
It seems to the Tribunal that if the applicant did have a genuine fear of persecution from the Chinese authorities, the Tribunal is not satisfied that he would not have sought the assistance of the Thai authorities, or approach any international agencies or foreign embassies to seek their protection or even their advice. The Tribunal is mindful that Thailand is not a signatory to the Refugees Convention, however, the applicant was not aware of this and the fact remains that he nevertheless did not approach them or any other foreign mission or international agency to seek protection.[2]
[2] See Court Book at page 76
The Tribunal found the Applicant was not a Falun Gong practitioner and did not have a genuine belief in or commitment to Falun Gong. The Tribunal was not satisfied, therefore, that he would be practise Falun Gong if he returned to China. The Tribunal found the Applicant did not suffer past persecution or any real chance of being persecuted at the time of the hearing or in the reasonably foreseeable future if he were to return to China in relation to his race, religion, nationality, political opinion or membership of a particular social group.
The Tribunal found that the Applicant was not a person to whom Australia has protection obligations under the Refugees Convention and did not satisfy the criterion set out in s.36(2)(a) for a protection visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court on 17th December 2007 by filing an application and an affidavit in support. He filed an amended application on 13th March 2008. In his amended application he set out two grounds:
(1)The Tribunal failed to consider the fact that I have been practising Falun Gong in Australia, and my activities here may cause further persecution to me on my return to China.
(2)The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with section 424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason. The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision and was required to explain why the information is relevant and provide the applicant with an opportunity to comment upon it. The abovementioned had to be provided in writing (SAAP v Minister for Immigration & Multicultural & Industrial and Ethnic Affairs (2005) HCA 24 (18 May 2001)).
The Applicant did not file any written outline of submissions but attended Court and made oral submissions which contained a number of other grounds of review, not all of which had been referred to in either his original application or his amended application. He claimed that the Tribunal did not consider the effect on him according to migration cases but set out no other cases except SAAP, which was incorrectly cited.
The Applicant claimed the Tribunal was biased against him and told the Court that the Tribunal was biased because it did not consider his case. He conceded that that allegation was not mentioned in either his original application or his amended application. He claimed the Tribunal could not comprehend his case properly and claimed that the Department, presumably meaning the Tribunal, had only judged his application based on an assumption and did not consider his application in accordance with s.91R of the Migration Act. He claimed also that the Tribunal refused his application without any basis or any evidence and that the Tribunal did not consider the chance of persecution that he might face and did not comply with s.424A of the Migration Act.
Ground 1
Dealing with the grounds in the amended application first of all, whilst the Applicant claimed that the Tribunal failed to consider the fact that he had been practising Falun Gong in Australia and that his activities in Australia would cause persecution to him on his return to China, it was a consistent feature in both the Applicant's claim for a visa to the delegate and the Applicant's evidence to the Tribunal hearing that he had not practised Falun Gong in Australia. Indeed, the Tribunal asked him about that very point, saying:
The Tribunal asked the applicant if he had been involved with Falun Gong since he arrived in Australia and he claimed that he had not. He claimed that he saw some people practising in Chinatown but did not know how to get into the group. The Tribunal suggested that he might go up and ask one of the practitioners and he claimed that he had no time. Asked if he tried to contact another group he claimed that he did not know how to. The Tribunal put the applicant that it did not appear that he had a genuine commitment to Falun Gong if he had not been motivated to find a group to join or even to practise since he had been in Australia.[3]
[3] See Court Book at page 74
In my view, the first ground in the Applicant's amended application must fail because it is factually incorrect. The Tribunal did not consider the fact that the Applicant had been practising Falun Gong in Australia because he specifically told the Tribunal that he had not been so practising. Ground 1 fails.
Ground 2
The Applicant's second ground is a claim that the Tribunal breached the requirements of s.424A of the Migration Act. The Tribunal based its decision on two factors:
a)Independent Country Information; and
b)The Applicant's own evidence to the Tribunal.
Neither of those matters enlivens the provisions of s.424A(1) of the Migration Act. Independent Country Information is specifically excluded by the provisions of s.424A(3)(a) of the Act and the Applicant's own evidence is specifically excluded by s.424A(3)(b) of the Migration Act. There is no breach of s.424A of the Migration Act.
Additional Ground - Allegation of Bias
As to the Applicant's grounds that were stated for the first time at the hearing today, most of those had not been mentioned in either the original application or the amended application. At no time had the Applicant claimed that the Tribunal was biased and, as Ms Hooper for the Minister pointed out, an allegation of bias is a serious allegation alleging, as it does, personal fault on the part of the decision-maker.
The reason given by the Applicant as to why the Tribunal is biased does not establish bias and the Tribunal's decision record does not establish any bias. Bias or bad faith involves a serious allegation which must be strictly alleged and strictly proved (see SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[4] and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[5]). There is no evidence of any bias whatsoever.
[4] [2002] FCAFC 358
[5] [2002] FCAFC 361
Conclusion
There is no evidence that the Tribunal did not consider any aspect of the Applicant's claim, nor is there any evidence that the Tribunal could not comprehend the Applicant's claim properly. There is no evidence that the Tribunal was unaware of the provisions of s.91R of the Migration Act, which, as Ms Hooper for the Respondent Minister pointed out, deals with the meaning of "persecution". I note that the Tribunal set out an explanation of the meanings of "persecution" and s.91R of the Act at pages 67 and 68 of the Court Book.
As to the Applicant's claim that the Tribunal refused his application without any basis or any evidence, the Tribunal does not require evidence to refuse a claim. It is not the role of the Tribunal to disprove the Applicant's claim. It is up to the Applicant to provide evidence sufficient to satisfy the Tribunal that the Applicant meets the requirements for a visa, in this case the requirements of s.36(2) of the Migration Act. The basis upon which the Tribunal rejected the Applicant's claims was that the Tribunal did not accept the Applicant's account. The decision was a decision on credibility, which is purely a matter for the decision-maker, provided there is evidence upon which the decision-maker would be entitled to make the finding.
In this case the Tribunal's assessment of the Applicant's claims was clearly within the Tribunal's jurisdiction as there was evidence upon which the Tribunal could form the conclusions that it did (see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[6]; and W148/00A v Minister for Immigration & Multicultural Affairs[7]).
[6] (2000) 168 ALR 407 at [67]
[7] (2001) 185 ALR 703 at [64]-[65]
The Applicant, when it was put to him by the Court that the Tribunal's account of what he said at the hearing differed from what he was claiming was a matter that the Tribunal failed to consider, made no further comment. I am satisfied from the Tribunal decision record that the Tribunal did put to the Applicant that he had specifically said that he had not practised Falun Gong in Australia and the Applicant has produced no evidence by way of transcript to show that any other evidence in that regard was given. In the absence of any other evidence, the Court can go no further than looking at the Tribunal decision record (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs[8]).
[8] [2004] FCAFC 241 at [21]
In my view, the Applicant's grounds, whether in the amended application or as put to the Court today, do not disclose any jurisdictional error. I am mindful of the fact that the Applicant is not legally represented and I have looked at the Tribunal decision and supporting decision independently of the Applicant's claims, but I am unable to discern any other arguable case for jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision must be a privative clause decision as defined by s.474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari, mandamus or prohibition. It follows that the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in his claim and, in my view, this is an appropriate matter for a costs order. The amount of $3,000.00 is an appropriate figure.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 10 April 2008
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