SZLVM v Minister for Immigration

[2008] FMCA 659

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLVM v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 659

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); 65(1)(b); 91R; 91R(3); 91S; 424A(1); 424A(3)(b); 474; pt.8 div.2

NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 153
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609

Applicant: SZLVM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3984 of 2007

Judgment of: Emmett FM

Hearing date: 21 May 2008

Date of last submission: 21 May 2008

Delivered at: Sydney

Delivered on: 21 May 2008

REPRESENTATION

The Applicant appeared in person assisted by a Mandarin interpreter

Solicitors for the Respondent: Mr R. Baird, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3987 of 2007

SZLVM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. 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 30 November 2007 and handed down on 6 December 2007. 

2. The Applicant claims to be from the People’s Republic of China (“China”) and a Falun Gong practitioner (“the Applicant”).  

3. The Applicant arrived in Australia on 10 June 2007 having departed legally from Pudong on a passport issued in her own name and a visitor visa issued on 31 May 2007. 

4. On 20 June 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.

5. The Applicant provided a statement in support of her protection visa application in which she stated she feared persecution by the Chinese authorities for her practice of Falun Gong and for her protest against the government for its inadequate compensation to her arising from the government’s displacement of the Applicant from her home.  The Applicant claimed she was arrested and detained following the demolition of her family’s house “as [she] protested their way of robbery”. 

6. On 28 August 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”). 

7. The Applicant attended an interview before the Delegate on 9 August 2007 at which she gave evidence.  The Delegate found the Applicant’s claims to be lacking in credibility and consistency and that they had been fabricated.  In relation to the Applicant’s displacement from her home in 1996 the Delegate noted that she had not suffered difficulties since that date and therefore was not of interest to the authorities.  The Delegate also found the Applicant to be unaware of the principles of Falun Gong despite claiming to have read and practiced Falun Gong for almost four years.

8. On 24 September 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. 

9. On 30 November 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa. 

10. On 31 December 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. 

Legislative framework

1. 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.

2. 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.

3. Australia has protection obligations to a refugee on Australian territory. 

4. 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.”

5. 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

1. On 29 October 2007 the Tribunal wrote to the Applicant informing her 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 19 November 2007 to give oral evidence and present arguments and to send to the Tribunal any further documents or arguments the Applicant wished the Tribunal to consider.  Nothing further was sent to the Tribunal by or on behalf of the Applicant.  

2. On 19 November 2007, the Applicant gave evidence at the hearing before the Tribunal in which the Applicant expanded upon her written claims and discussed with the Tribunal her previous employment and the sale of the shop in which she worked; her inability to find work at her previous rate of pay and lack of assistance from the state due to her being over a certain age; her marital status and family in China; the claims in her visitor visa application and how she acquired this visa; her passport; her travel to Australia and the delay in this travel; her practice of Falun Gong in Australia; her introduction to Falun Gong in China; her knowledge of Falun Gong; and, the assistance provided to the Applicant by her migration agent in accessing the Campsie Falun Gong study group. 

3. The Tribunal accepted that the Applicant’s family were displaced at some time in the past and that the Applicant viewed the compensation as inadequate.  The Tribunal accepted that the Applicant was detained at some unspecified point in the past for opposing her family’s displacement.  However, the Tribunal gave no weight to such events because the Applicant did not claim a fear of persecution in China arising from those events. 

4. The Tribunal considered whether the Applicant faced a real chance of persecution by reason of the loss of her job in 2001, however, noted that the Applicant did not claim a fear of persecution in China from that event.  The Tribunal found that the Applicant did not lose her job for any Convention-related reason.  Further, the Tribunal found that any socio-economic hardships that she may face if the Applicant were to return to China had no Convention nexus. 

5. The Tribunal found that the Applicant’s evidence about her Falun Gong practice in China was not consistent and rejected her claim of having begun to familiarise herself with Falun Gong whilst still living in China. 

6. The Tribunal found that the Applicant’s attendance at the Campsie Falun Gong study group was for the purpose of strengthening her claims to be a refugee in Australia. Accordingly, pursuant to s.91R(3) of the Act, the Tribunal noted that it must disregard such conduct.

7. The Tribunal found that the Applicant did not have a genuine interest in Falun Gong.  The Tribunal was not satisfied that the Applicant faces a real chance of Convention-related persecution in China or that any such claimed fear of persecution is well-founded. 

8. Accordingly, the Tribunal affirmed the decision under review. 

The proceeding before this Court

1. The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter.  The Applicant has participated in the Panel Advice Scheme. 

2. The Applicant confirmed that she relied on the grounds contained in an application filed on 31 December 2007.

3. The grounds of the application are expressed to be as follows:

   “1. Jurisdictional error has been made.

   2. Procedural fairness has been denied.

   3. RRT did not give me letter to explain doubts.”

4. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of her application generally.  The Applicant confirmed that she had filed no further particulars, evidence or submissions in support of her application. 

5. The grounds of the application do not disclose any error capable of review by this Court.  In the application, the Applicant stated “I will explain my claim clearly.”  However, the Applicant declined to make any submission to this Court in support of any of the grounds or in support of her application generally. 

6. A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims; explored her claims with her at a hearing; put to her matters of concern it had about her evidence and noted the Applicant’s responses; had regard to submissions made by her migration agent; explored with the Applicant the effect of s.91R(3) of the Act and put to her its concerns about her conduct in Australia and invited the Applicant to comment.

7. The Tribunal noted the Applicant’s request to change interpreters.  However the Tribunal found that neither the Applicant nor her migration agent identified any errors in the interpreter’s translation and refused the Applicant’s request.  The Tribunal also noted the Applicant’s post-hearing submission dated 29 November 2007 in which the Applicant again complained about the interpreter.  Again, the Tribunal noted that neither the Applicant nor her migration agent were able to identify “any claims that were untranslated or referred to specific items of information that were cut off by the interpreter”. 

8. There is no evidence before this Court to support any contention of translation errors.  The Applicant was directed to file and serve any evidence in support of her application, including any transcript of the Tribunal hearing, by 17 April 2008.  As stated above in these Reasons, the Applicant confirmed at the commencement of the hearing before this Court that she had not filed any further evidence in support of her application.  In the circumstances, in the absence of any evidence to support a contention of translation errors, there is no evidential basis to allow the Court to find that any such translation errors were made that resulted in the Applicant being deprived of a fair hearing (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]).

9. Further, a fair reading of the Tribunal’s decision makes clear that the Tribunal considered the Applicant’s request to change interpreters and refused the request on the basis that no errors were identified in the interpreter’s translation either by the Applicant or the migration agent.  Such a decision was open to the Tribunal on the evidence and material before it and for which it provided reasons. 

10. A fair reading of the Tribunal’s decision makes clear that the Tribunal explored with the Applicant the issues of her credibility, lack of knowledge of Falun Gong and the lack of any Convention-nexus in her claims of displacement.  Those are all issues raised by the Delegate in his decision.  Indeed, the Delegate’s finding that the Applicant had fabricated her claims was sufficient to put the Applicant on notice that everything she said in support of her application was in issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 153 at [47]).

11. A fair reading of the Tribunal’s decision makes clear that the reason the Tribunal affirmed the decision under review was because it was not satisfied that the Applicant was a genuine Falun Gong practitioner or had a well-founded fear of persecution now or in the reasonably foreseeable future for a Convention-related reason if she were to return to China.  The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for which it provided reasons. 

12. The Tribunal’s adverse findings were based solely on the evidence given by the Applicant to the Tribunal at the hearing.  Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). Such findings are not information that enlivens the obligations of s.424A(1) of the Act, by reason of s.424A(3)(b) of the Act. They are based on evidence given by the Applicant for the purposes of her review application and therefore are information that is excluded from the obligations of s.424A(1) of the Act.

13. Further, the Tribunal’s assessment, evaluation and subjective appraisals of the Applicant’s evidence are thought processes that do not constitute “information” for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [18]).

14. Otherwise, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review. 

15. As stated above in these Reasons, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for which it provided reasons. The Tribunal applied the correct law to the facts as it found them to be in considering whether or not the Applicant satisfied the statutory criteria set out in s.36 of the Act for being a refugee. The Tribunal was obliged to affirm the decision to refuse the Applicant a protection visa in circumstances where it was not so satisfied pursuant to s.65(1)(b) of the Act.

16. Accordingly, none of the grounds of the application are made out. 

Conclusion

1. 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.

2. The proceeding before this Court is dismissed with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  21 May 2008