SZLUO v Minister for Immigration

[2008] FMCA 649

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUO v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 649

MIGRATION – VISA – Protection (Class XA) visa – Refugee Review Tribunal – application to review decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – citizen of China claiming well founded fear of persecution on the ground of being a Falun Gong practitioner – credibility – no evidence of bias – privative clause – no reviewable error.

Migration Act 1958 (Cth), ss.36, 91R, 424A, 424AA, 425, 474

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed.

Applicant: SZLUO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3925 of 2007

Judgment of: Scarlett FM

Hearing date: 29 April 2008

Date of Last Submission: 29 April 2008

Delivered at: Sydney

Delivered on: 29 April 2008

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3925 of 2007

SZLUO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant is a citizen of China.  He asks the Court to set aside a decision of the Refugee Review Tribunal which affirmed a decision f a delegate of the Minister for Immigration & Citizenship not to grant him a protection visa.  He also asks the Court for an order sending his application for a visa back to the Refugee Review Tribunal for further review according to law.  He has filed an affidavit in support of his application in which he says that he arrived in Australia in May 2007.  He says that he is a Falun Gong practitioner and that the Chinese government persecutes practitioners of Falun Gong.  He claims that he will be put in gaol if he returns to China and practises Falun Gong.  He said that he refuses to go back to China because the Chinese government forbids him to engage in that practice. 

2. The Minister for Immigration & Citizenship has filed a response opposing the application. 

3. The applicant did indeed arrive in Australia on 3 May 2007 and applied for a Protection (Class XA) visa on 4 June of that year.  He applied on the basis that he was a Falun Gong practitioner and that he had been taught by a Falun Gong master.  He claims to have been arrested and detained. 

4. A delegate of the Minister refused his application on 16 July 2007.  The delegate was not satisfied that the applicant was a genuine active practitioner of Falun Gong and even though country information showed that Falun Gong members identified by the Chinese government as core leaders had been singled out for particularly harsh treatment, the delegate was not satisfied on the basis of the available evidence that the applicant's profile would be of any interest to the Chinese authorities if he were to return to China.  Accordingly, the delegate refused the application for a visa on 16 July 2007. 

5. The applicant then filed an application for review of the delegate's decision with the Refugee Review Tribunal.  Although the Tribunal decision claims that the applicant applied on 3 October 2007, the date stamp on the application for review at page 52 of the Court Book shows an application having been received on 10 August 2007.  Indeed the Tribunal wrote to the applicant on 13 August acknowledging receipt of his application and wrote again on 27 August inviting him to attend a hearing on 3 October. 

6. The applicant on 27 August provided to the Tribunal a four-page statement in English supporting his application for review.  He claimed in the statement that he did not think that the delegate's decision was a fair one and expressed the concern that he may have been nervous when he attended an interview with a departmental officer.  He also set out other material in which he challenged the knowledge of the delegate about the situation in China and set out a description of how he had paid a fine and made arrangements to leave China as preparation for his overseas trip.  He reiterated that he was a genuine and normal Falun Gong practitioner and claimed that he tasted freedom when he arrived in Australia and challenged the decision of the departmental officer to refuse the application. 

7. He challenged the findings of the delegate quoting from independent country information that Chinese official documents can be bought or forged and went on to claim that he had been tortured and the Chinese police already regarded him as a serious criminal.  He reiterated that he was a genuine Falun Gong practitioner who had suffered detention and torture due to his practice of Falun Gong in China.

8. The applicant provided to the Tribunal a number of photographs and also provided his Chinese passport. He attended a hearing on 3 October 2007 in which he gave evidence with the assistance of an interpreter in the Mandarin language. After the hearing, on 8 October 2007, he provided a further submission to the Tribunal which dealt with his involvement in Falun Gong activities in Australia and also about his obtaining a passport. He also reiterated that the documents he produced were indeed genuine. He said the documents in the Tribunal's possession were copies because when the original documents were sent to him they looked quite new and they were then photocopied. He offered to submit the original documents.

9. The Tribunal wrote to the applicant on 12 October 2007 in a letter headed "Invitation To Comment On Information In Writing" informing him that the Tribunal had information that would, subject to any comments that he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa and set out that information.  The letter also provided quotes from country information on exiting China and referred to internal inconsistencies in his evidence to the Tribunal.  The letter invited the applicant to give comments in writing by 6 November 2007.

10. On 29 October 2007 the applicant replied to the Tribunal's letter and provided comments in a four-page letter. The Tribunal signed its decision on 15 November 2007 and handed that decision down on

    
    

    4 December. A copy of the Tribunal decision record can be found at pages 96 through to 127 of the Court Book. In that decision the Tribunal set out the applicant's claims and evidence based on information that was on the departmental file, further evidence provided to the department, including a summary of evidence that he gave at an interview with the delegate, documentary evidence provided to the Tribunal and a summary in some detail of the applicant's evidence to the Tribunal. The Tribunal also referred to the applicant's post-hearing submission and its s.424A letter and referred to the applicant's post-hearing response to the s.424A letter.

11. In that letter the applicant had referred to a person in Australia who could provide evidence about his Falun Gong activities in Australia.  The Tribunal noted at page 116 of the Court Book that the Tribunal called that person on 2 November 2007 and she said that she knew the applicant and said that he had gone to a Falun Gong practice site at Ashfield on a few times and that Falun Gong practitioners exercised at Ashfield on Wednesdays and Sundays from 7.30 pm to 10 pm. 

12. The Tribunal also referred to background information relating to the background to Falun Gong, when and why Falun Gong started to attract government attention and an overview of types of treatment of Falun Gong practitioners since 1999.  The Tribunal also referred to evidence of differential treatment of leaders and followers of the Falun Gong movement.  The Tribunal's findings and reasons are set out on pages 121 through to 126 of the Court Book. 

13. The Tribunal found that the applicant was a citizen of the People's Republic of China based on the evidence of his Chinese passport.  The Tribunal accepted that the treatment of some Falun Gong practitioners in China since its banning in 1999 had involved serious harm and systematic and discriminatory conduct by the authorities in the People's Republic of China.  The Tribunal noted the applicant's claimed fear of persecution because he was a Falun Gong practitioner and noted that he demonstrated a good understanding and knowledge of Falun Gong and its exercises.  The Tribunal went on to say, however:

    However, knowledge does not necessarily establish belief and for the reasons set out below, including internal inconsistencies in his evidence and inconsistencies with country information, the Tribunal finds that the applicant does not hold a genuine belief in or commitment to Falun Gong beliefs and practices[1].

    [1] See Court Book page 122

14. The Tribunal referred to the applicant's claims that the reason for inconsistencies in his evidence was nervousness and past psychological harm that he had suffered as a result of his detention and torture.  The Tribunal did not accept this and noted that the applicant had the capacity to understand the proceedings and provide detailed evidence and arguments for his claims. The Tribunal also noted that no medical evidence was provided. The Tribunal referred to the internal inconsistencies in the applicant's evidence and referred also to the applicant's indication to the Tribunal at the hearing that the documents that he submitted relating to his detention were in fact the originals.  The Tribunal took the view that if they were genuine and original documents the applicant would not have been inconsistent on that point. The Tribunal found that he had fabricated that evidence and was not a witness of truth.  The Tribunal put to the applicant at the hearing that independent country information indicated that many documents in China were forged. The Tribunal accordingly placed little evidentiary weight on those documents. 

15. The Tribunal did not accept that the applicant practised Falun Gong in China because there were a number of inconsistencies in his evidence in this regard. The Tribunal had difficulty also in accepting that the applicant would have been able to leave China legally if he was under the constant police surveillance that he had claimed. The Tribunal noted the applicant's reply to its s.424A letter, but also found that on the basis of his inconsistencies in evidence it did not believe that the applicant was being truthful. The Tribunal did not accept that the applicant was a Falun Gong practitioner at the time of the hearing or previously and it did not accept that he was detained for being a Falun Gong practitioner or that he would be persecuted if he returned to China for being a Falun Gong practitioner.

16. The Tribunal turned its attention to the applicant's claim to have practised Falun Gong in Australia and accepted that he may have attended a Falun Gong group in Australia and engaged in study of Falun Gong. However, the Tribunal was not satisfied that the applicant's activities in respect of Falun Gong in Australia either intending Falun Gong practices or study or in attending protests had been engaged in other than for the reason to strengthen his claim for refugee status. The Tribunal disregarded this conduct in assessing his case under the provisions of s.91R(3) of the Migration Act. In short, the Tribunal did not accept that the applicant was a Falun Gong practitioner or had been and did not accept that he would face persecution in China as a Falun Gong practitioner if he were to return. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention and did not satisfy the criterion set out in s.36(2)(a) of the Migration Act for a protection visa.

17. The applicant commenced proceedings in this court on 21 December 2007 seeking review of the Tribunal decision.  He set out three grounds very simply:

    (1)Jurisdictional error has been made.

    (2)Procedural fairness has been denied.

    (3)RRT did not consider my evidence with fairness.

    He went on to say that he would provide more evidence to prove that he attended Falun Gong activity. 

18. The applicant did not file a written outline of submissions, but he made an oral submission to the Court.  He said that the Tribunal had found that his evidence was lacking in truth because he did not give perfect answers at the RRT hearing.  He complained that was unfair and said that the Tribunal had decided his application without any fair grounds.  He said that he had provided a huge amount of photos to prove that he was a real Falun Gong practitioner, but the Tribunal refused his evidence and had doubts about his verbal expression.  He reiterated his claim of psychological harm or damage on his brain and his claim that he was nervous at the hearing.  He said that this did not prove that he was not a Falun Gong practitioner.  He complained that the Tribunal had found that his documents were fabricated.  He said that he could explain that.  He had provided the original copies to his migration agent and did not know that he had to bring original documents to the Tribunal hearing.  He said that this did not explain that he was not a Falun Gong practitioner either.  He went on to say that there were no human rights in China and Falun Gong practitioners were persecuted and he did not dare to mention Falun Gong.  He said that many Falun Gong practitioners had been sent to gaol and some had been killed.  He reiterated that he did not dare to go back to China and he would not stop his religious belief, that is, his practice of Falun Gong.  He said that if he went back to China it would be as if he were to kill himself.  In Australia he can participate in Falun Gong activities freely. 

19. For the Minister, Mr Snell, solicitor, submitted that the applicant's claims about abuse of Falun Gong practitioners and an absence of human rights in China went to the merits of his application and were factual matters that are not subject to judicial review. He submitted that the Tribunal had concerns about whether his documents were original or fabricated, but had raised those with the applicant at the hearing. The Tribunal had also considered and rejected the applicant's claims of psychological injury and nervousness at hearing. He noted that the Tribunal had written a letter under the provisions of s.424A of the Migration Act to the applicant in some detail and the applicant had responded, also I note in some detail. In short, he submitted that there was no error and no jurisdictional error. If the applicant's claim that the Tribunal did not consider his evidence with fairness was an allegation of bias, he submitted that the onus was on the applicant to establish bias and that there was on evidence of it.

20. In considering the application for review I note that the Tribunal's decision is based essentially on the applicant's credibility as a witness. The Tribunal considered the applicant's oral evidence to the Tribunal and put its doubts to the applicant at the hearing. It also considered a post-hearing submission made by the applicant and indeed wrote to the applicant and set out its concerns in a letter under s.424A of the Migration Act in a considerable amount of detail. The applicant replied to that letter in some detail and the Tribunal considered that reply. The Tribunal considered the applicant's Falun Gong activities in Australia and his concern that he would be persecuted in China because of his involvement in Falun Gong related protests, which included having his photo published on the internet. The Tribunal was not satisfied on the evidence that the applicant's activities had been entered into other than for the purpose of strengthening his claim for refugee status.

21. It is difficult to see that the applicant has made out his claim of jurisdictional error. There is no breach of s.424A or s.424AA of the Migration Act. There is no breach of s.425. The applicant was invited to a hearing and attended a hearing where the issues were fully discussed with him and indeed these were the issues that appeared in the delegate's decision. The applicant claimed that the Tribunal did not consider his evidence with fairness. If it is a claim of bias, there is no evidence of bias, which is a very serious allegation relying, as it does, on a claim of personal fault on the part of the decision-maker. It must be strictly alleged and strictly proved[2].

    [2] See SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361

22. In my view, the applicant's claims relate specifically to a challenge to the Tribunal's factual findings. This of course is not open on judicial review. I am mindful of the fact that the applicant is not legally represented. My reading of the Tribunal decision and the supporting documentation does not indicate any jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Privative clause decisions are not subject to orders in the nature of certiorari or mandamus. It follows that the applicant will be dismissed.

23. There is an application for costs on behalf of the first respondent Minister. This is an appropriate matter for a costs order and the amount of $3500 is an appropriate figure.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  19 May 2008